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A   TREATISE 


ON  THE  LAW  OF 


FRAUD  AND  MISTAKE. 


BY 
WILLIAM  WILLIAMSO:^[    KEER, 

OF  Lincoln's  inn,  barrister-at-law. 


WITH  NOTES  TO  AMERICAN  CASES, 

By   ORLANDO   F.   BUMP, 

COUNSKLLOR  AT   LAW. 


NEW  YORK: 
BAKER,  VOORHIS  &  CO.,  PUBLISHERS, 

GC     NASSAU     STREET. 
1877. 


T 


Entered,  Bocordjng  to  Act  of  Congress,  in  the  year  one  thousand  eight  hundred  and  f  eventy-two,  I  y 

BAKER,    VOOEIIIS    &    CO., 

In  iio  Office  of  the  Librarian  of  Congress,  at  Washington. 


PREFACE  TO  THE  AMERICAN  EDITION. 


TsE  English  edition  of  this  work,  upon  its  first  appearance, 
attracted  the  attention  of  the  profession  in  this  country  on 
account  of  its  fuUness  both  in  the  text  and  in  the  citation  oi 
authorities,  the  general  excellence  of  the  plan,  the  mode 
of  treating  the  subject,  and  the  importance  of  the  topics  dis- 
cussed. A  work  which  tlius  presents  the  result  of  the  latest 
decisions  in  England,  ought  to  find  its  way  into  the  majority 
of  the  libraries  in  this  country,  and  an  American  edition  be- 
came desirable. 

In  |)reparing  such  an  edition,  two  plans  were  open.  One 
was  to  make  a  collection  of  all  the  authorities  in  this  country 
and  add  them  as  notes  to  the  original  text.  A  work  which 
shall  embrace  all  the  English  and  American  cases,  is  certainly 
desirable,  bul-  the  chief  objection  to  adding  the  American 
cases,  as  notea  to  an  English  text,  is,  that  the  notes  Avould 
OTcrwhelm  the  text,  and  such  a  result  ought,  in  all  cases,  to 
be  avoided.  What  is  needed,  is  a  skilful  treatise  which  shall 
combine  botl)  the  English  and  American  law  in  one  text ;  and 
the  writer  who  has  the  patience  and  the  diligence  to  examine 
all  the  American  cases,  will  prepare  such  a  work  rather  than 
make  annotations  to  the  text  of  some  other  author. 


IV  PEEFACE. 


The  present  notes  to  the  English  text,  therefore,  make  no 
such  ambitious  pretension  as  that  of  presenting  the  whole  of 
the  American  law  upon  the  subjects  treated  in  the  original 
text.  Their  aim  is  simply  to  make  the  English  work  more 
practically  available  to  the  American  lawyer.  Some  topics 
have  been  treated  more  fully  than  others.  On  some  points 
tlie  practitioner  has  been  left  to  rely  upon  the  English  text 
alone.  This  result  has  been  the  inevitable  consequence  of  the 
fact  that  they  do  not  pretend  to  be  exhaustive.  It  is  believed, 
however,  that  they  will  he  found  useful  in  practice  and  a 
desirable  addition  to  the  work. 

Oklando  F.  Bump. 

Baltimore,  Dec.  1st,  1871. 


SUMMARY  OF  CONTENTS. 


PAQH 

Table  of  English  Cases  cited ,.,  1 

Table  of  Ameeican  Cases  cited 21 


CHAPTER    I. 

FEAUD. 

Section  1. 

Geneeal  Consideeation-s 41 — 53 

Section  2. 

Miseepeesentation"  and  Concealment 53 — 142 

Section  3. 

Feaud  to  be  peesumed  feom  the  inequality   of 

the  paeties;    inadequacy  of  consideeation  .  143 — 195 

Section    4. 

Feaud  upon  thied  paeties 195 — 267 

Fraud  upon  creditors 196 

Fraud  upon  marriage  articles 215 

Fraud  upon  the  marital  rights 217 

Marriage  and  place  brokage  bonds ^ 220 

Bonds  to  many 222 


Yl  COls'TENTS. 

Fraud  in  -withholding  consent  to  mamage 233 

Fraud  in  respect  of  expectancies 223 

Fraud  in  respect  of  sales  by  auction , 224 

Voluntaiy  conveyances  in  fraud  of  subsequent  pur- 
chasers    226 

Notice 233 

Section  5. 

Miscellaneous  Frauds 267 — 296 

Fraud  upon  powers 267 

Fraud  in  the  prevention  by  undue  means  of  acts  to  be 

done  for  the  benefit  of  third  parties 273 

Fraudulent  suppression  or  destruction  of  deeds  and 

other  instruments  in  violation  of  or  injury  to  the 

rights  of  others 275 

Fraud  in  setting  up  an  instrument  obtained  for  one 

Ijurpose  for  another  puipose 276 

Fraud  in  assignments,  by  assignees,  »fcc.  &c 277 

Fraud  by  and  upon  companies  278 

Fraud  upon  the  Mortmain  laws 279 

Fraud  upon  the  law  of  Forfeiture 280 

Fraud  upon  the  Bankrupt  laws 280 

Fraud  upon  the  restraining  statutes  &c.  &c 288 

Fraud  in  awards 288 

Fraud  in  Judgments ...    293 

Fraud  upon  the  Crown 294 

Fraud  upon  Courts  of  competent  jui'isdiction 295 

Fraud  upon  the  legislature 295 

Section  6. 

ITOW  THE  EIGHT  TO  EVIPEACH   A   TRANSACTION    ON   THE 

GROUND  OF  Fraud  may  be  lost  • 296 — 324 

Confirmation 296 

Release 298 

Acquiescence 298 

Delay  and  Lapse  of  time ...  303 

.              Purchase  for  value  without  notice 312 

Section  7. 

Remedies 324—363 

Remedies  at  law 324 

Remedies  in  equity 333 


CONTEXTS.  vii 

Section  8. 

Pleading.     Parties.     Proof * 365 — 395 

Pleading ^^^ 

Parties ^"^^ 

Proof. 383 

Costs 390 


CHAPTEE    II. 

Mistake 39G— 456 

GENERAL  INDEX : 459—605 


L 


TABLE  OF  EKGLISII  CASES  CITED. 


-►-♦- 


^BOTT  V.  Gerahtv,  253. 
—      V.  Sworder,   95,   102,   187,   188, 
363,  390. 
Aberdeen  Railway  Co.  v.  Blaikie,  151, 

158.  161. 
Adams  v.  Sworder,  158,  161,  165,  166, 

348,  378. 
Adamson  v.  Evitt,  44,  46,  54,  95. 
Addis  V.  Campbell,  146,  147,  301,  311. 
Adlington  v.  Cam],  279. 
Adsetts  V.  Hives,  138,  139. 
Affleck  V.  Affleck,  440, 
Agace,  ex-parie,  115. 
Agassiz  V.  Squire,  271. 
Ahearne  v.  Hogan,  190,  192. 
Ainslie  v.  Medlycott,  59,  68,  69,  359. 
Aitken's  ArbitratioD,  448. 
Aldboroujrh,  Earl  of,  v.  Trye,  187,  344. 
Aldred  v.'Constable,  285. 
Alden  v.  Gregory,  52. 
Alder  v.  Boyle,  435. 
Alexander  v.  Crosbie,  423,  454. 
Aleyn  v.  Belcher,  273. 
Allen  V.  Anthony,  246. 

—  V.  Davies,  192. 

—  V.  Knight,  141,  251,  234,  316,  319, 

391. 

—  V.  Macpherson,  41,  44,  354. 
Allfrey  V.  Allfrey,  51,  162, 161, 179,  306, 

307,  309,  311,  387. 
Alt  V.  Alt,  40. 
Alvanley  v.  Kinnaird,  408,  411, 412, 454, 

455. 
Alven  V.  Bond,  161. 
Anderson  v.  Ellsworth,  193,  387. 

—  V.  Fitzgerald,  42,  70,  72,  73 
Andrew  v.  Wrigley,  316. 

Anon.,  67, 160. 

_     V.  Mills,  289. 
Archbold  v.  Commissioners  of  Charitable 
Bequests,  383. 
_        V.  Lord  Howth,  95,  97,  100, 
112. 

—  V.  Scull V,  129,  302  305. 


Archer  v.  Hudson,  177,  178,  173,  258. 
Ardglasse  v.  Muschamp,  180. 

—         V.  Pitt,  152,  193. 
Arnold  v.  Hardwick,  268,  272. 
Arnot  V.  Biscoe,  148,341. 
Arthur  v.  Midland  Railway  Co.,  352. 
Arundel  v.  Trevillian,  221. 
Arundell,  Lady,  v.  Phipps,  203,  211. 
Ashurst  V.  Mill,  419,  434,  455. 
Ashwin  v.  Burton,  323. 
Askhfim  V.  Barber,  268. 
Aspland  v.  Watte,  298,  306. 
Aston  V.  Curzon,  370. 
Athenffium  Life  Society  v.  Pooley,  297, 

322. 
Atkinson  v.  Macreth,  262. 
Atterbury  v.  Wallis,  251,  260,  262. 
Att.-Gen.  v.  Alford,  350. 

—  V.  Backhouse,  248,  250. 

—  V.  Balliol  College,  346. 

—  V.  Briggs,  116. 

—  V.  Corporation  ot  Cashel,  162, 

—  V.  Earl  of  Clarendon,  158,  161. 

—  V.  Cox,  333. 

—  ■;;.  Cradock,  380. 

—  V.  Earl  of  Craven,  346. 

—  V.  Davey,  346. 

—  V.  Fishmongers'  Co.,  307. 

—  v.  Flint,  240,  242,312,318,322. 

—  V.  Grote,  452. 

—  V.  Hall,  248. 

—  V.  Jones,  252. 

—  V.  Magd.alen  College,  344,  346 

—  V.  Pargeter,  250. 

—  V.  Corporation  of  Poole,  366. 

—  V  Rickards,  294. 

—  V.  Sitwell,  418. 

—  V.  Stephens,  244, 

—  V.  Kerr,  346,  347. 

—  V.  Vernon,  355. 

—  V.  Wilkins,  313,  320,  321,  371. 
Atwood  V. ,  404,  434,  454. 

—      V.  Small,  54,  70,  74,  76,  77,  78, 
93,  306,  326. 


TABLE  OF  ENGLISH  CASES  CITED. 


Attwool  V.  Merryweather,  1*72,  373. 
Auriol  V.  Smith,  289. 
Austin  V.  Ciiambers,  159,  160,  168,  299, 
300. 
—     V.  Tawney,  260. 
Aveline  v.  Melhuish,  298. 
Avles  V.  Cox,  361,  362,  363. 
Ayliffe  v.  Murray,  151,  156,  157. 
Aylward  v.  Kearney,  178,  193,  194,  301, 

311. 
Ayre's  Case,  41,  47,  69,  116,  333. 
Azemar  v.  Casella,  59. 


Bage,  ex-parte,  160. 
Baglehole  v.  Walters,  90,  101. 
Bagshaw  v.  Seymour,  374. 
Bagueley  v.  Hawley,  105. 
Bailey,  ex-parte, 

—  V.  liicliardson,  244. 

—  V.  Watkins,  158. 
Baily  v.  Mcrrell,  83. 
Bainbrigge  v.  Blair,  156. 

—         V.  Moss,  94,  125,  251,366. 
Baker  v.  Bradley,   180,    181,   182,  301, 
344,  383,  393. 

—  V.  Carter,  158,  161,  392. 

—  V.  Monk,  143,  194,  390. 

—  V.  Read,  3U5,  307,  391. 
Ball  V.  Mannin,  146. 

—  V.  Storie,  421. 
Bandon,  Lord,  v.  Beeher,  293. 
Bankart  v.  Houghton,  448. 
Bannerman  v.  White,  70,  72. 
Barber  v.  Richards,  330, 
Bargate  v.  Shortridge,  278. 
Barker  v.  Harrison,  173,  175. 
Barkworth  v.  Young,  89,  342. 
Barling  v.  Bishop,  207,  208. 
Barnard  v.  Bagshaw,  279. 

—  V.  Hunter,  165. 

—  V.  Sutton,  374,  375,  376. 

—  V.  Wallis,  132. 
Barnardiston  v.  Lingood,  187,  344, 
Barnes  v.  Freeland,  331. 

Barnesley  v.  Powell,  93,  275,  352,  353, 

354. 
Barnett  v.  Sheffield,  323. 
Earnhardt  v.  Greenshields,  234,  246,  247 

248. 
Barr  v.  Gibson,  105,  432. 
Barrack  v.  M'Culloch,  209. 
Barrett  zi.  Hartley.  150,  156. 

—  V.  Wells,  216. 
Barrett's  Case,  74,  93,  117,  118. 
Barrow  v.  Barrow,  419,  423,  428,  455. 

—  V.  Greenough,  275. 

Barry  v.  Crosskey,  46,  47,  48,  74,  93,  94 

116,  369,  374. 
Bartholomew  v.  Leech,  159. 


Bartlett  v.  Salmon.  46,  62,  81,  257,  352, 
357,  391. 

—  V.  Wells,  148. 
Barton  v.  Hassard,  161. 

—  V.  Vanheythuysen,  195,  207,  233. 
Barwell  v.  Barwell,  306,  307. 
Barwick  v.  English  Joint  Stock  Banking 

Co.,  112,  123. 
Bate  V.  Bank  of  England,  194. 
—  V  .  Hooper,  402. 
Bateman  v.  Boynton,  436,  454. 

—  V.  Ramsay,  374,  376. 

—  V.  Willoe,  407. 
Bates  V.  Graves,  44,  344. 

—  V.  Hewitt,  120. 

—  V.  Johnson,  313,  316,  324. 

Bath  &  Montague's  Case,  241,  258,  384 

Battersby  v.  Smyth,  288. 

Batty  V.  Chester,  377. 

Baxendale  v.  Seale,  67,  412,  432,  435, 

456. 
Bavlis  V.  Att.-Gen.,  452. 
Bayly  v.  Wilkins,  171. 
Baynard  v.  Woolley,  379. 
Bayne  v.  Ferguson,  182,  302. 
Beliden  v.  King,  160,  162,  304,  335. 
Beadles  v.  Burch,  380,  394,  395, 
Beale  v.  Billing,  165,  180. 
Bemland  v.  Bradley,  183,  194. 
Beasley  v.  Magrath,  177,  178,  179. 
Beaufort,  Duke  of,  v.  Neeld,  407. 

—  V.  Patrick,   130,    133, 

135. 
Beaumont,  ex-parte,  161. 

—  V.  Bramley,    419,   421,   423, 

436. 

—  V.  Fell,  449. 
Beavan  v.  M'Donnell,  145. 

.  —      V.  Lord  Oxford,  230,  267. 
Beck  V.  Dean.  278. 

—  V.  Kantorowicz,  95,  172,  175,  373. 
Beckett  v.  Cordley,  130, 131,  148,  251. 
Beckford  v.  Wade,  304,  305,  307. 
Beckley  v.  Newland,  222,  224. 
Beddoes  v.  Pugh,  269. 

Bedford  v.  Bagshaw,  373. 

Bedford,  Duke  of,  v.  Coke,  280. 

Beeching  r.  Lloyd,  47,  369. 

Beere  v.  Hufl'meister,  269. 

Behn  v.  Burness,  69,  70,  71,  72,  331, 

Belhaven's  Case,  Lord,  404. 

Bell  I'.  Clarke,  217. 

—  V.  Cureton,  199. 

—  V.  Gardiner,  406. 

—  V.  Howard,  146,  194. 

—  V.  Midland  Railway  Co.,  130. 

—  V.  Simpson,  281,  282. 

Bellamy  t;.  Sabine,    52,    166,    181,   311, 

336,  343,  357,  371,  372,  .'iSi,  390. 
Bellew  V.  Russell,  302,  312. 
Bell's  Case,  333. 


TABLE  OF  ENGLISH  CASES  CITED. 


Beloit,  Bant  of,  v.  Beale,  331. 
Benham  v.  Kean'j,  266,  267. 

—  V.  United  Guarantee,  &c.,  Asso- 

ciation, 70. 
Bennett,  ex-parte,  157,  158, 159, 160, 161, 
166,  346,  349, 

—  V.  Colley,  301. 

—  V.  Judson,  104. 

—  V.  Wade,  52,  146,  367,  380, 385, 

394. 
Benson  v.  Heathorn,  161,  161,  172,  350, 

373. 
Bentley  V.  Craven,  172,  174,  175,  182. 

—  V.  Mackay,  182,  195,  416,  421, 

422,  423,  436,  454. 
Benyon  v.  ^ettlefold,  378,  388. 
Berdoe  v.  Dawson,  180,  182,  254,  301. 
Bernal  v.  Lord  Donegal,  302. 
Bernard's  Case,  116. 
Berrisford  v.  Milward,  130. 
Berry  v.  Armitstead,  333,  350,  380,  394. 
Berwick,  Mayor  of,  v.  Murray,  238,  350. 
Bessey  v.  Windham,  294. 
Bevan  v.  Habzood,  162. 
Bexwell  v.  Christie,  225. 
Bigge  V.  Parkinson,  107. 
Bilbie  V.  Lumley,  402,  403. 
Bill  V.  Cureton,  230,  233. 
Billage  V.  Southee,  152,  183,   191,  344, 

383,  387. 
Bills  V.  Smith,  286. 
Bingham  v.  Bingham,  400,  454, 
Birch  V.  Blagrave,  376. 
Bird  V.  Fox,  256. 
Bird-all  v.  Russell,  236,  237. 
Birley  v.  Birlej^  270. 
Bisco  V.  Earl  of  Banbury,  241. 
Bishop  V.  Church,  425. 

—  V.  Countess  of  Jersey,  382, 
Bittlestone  v.  Cooke,  212,  281. 
Blackburn's  Case,  90. 
Blackford  v.  Christian,  146. 
Blackball  v.  Coombs,  407. 

Blackie  v.  Clarke,  189,  192,  254,  312, 
436. 

Blacklow  V.  Laws,  239. 

Blagrave  v.  Routh,  166,  168. 

Blain  v.  Agar,  47,  369. 

Blair  v.  Bromley,  47,  52,  111,  116,  309, 
333,  334,  381,  382. 

Blake  v.  Mowatt.  95,  98,  99,  337. 

Blakeinore  v.  Bristol  and  Exeter  Rail- 
way Co.,  373. 

Blakeney  v.  Ba^gott,  187. 

Blake's  Case,  351. 

Blanchet  v.  Foster,  220. 

Bland,  ex-parle,  281,  283. 

Blenkinsopp  v.  Blenkiusopp,  295. 

Blenner!i:isselt  r.  D.iy,  162,  291,  300, 
30i,  309,  310. 

Blest  V.  Brown,  122,  393. 


Blissett  V.  Daniel,  182. 

Blood  V.  Keller,  134. 

Bloye's  Trust,  Re,  158,  162,  166,  173. 

Boddington  v.  Langford,  161. 

Bold  V.  Hutchinson,  88,  90,  91,  424. 

Bond  V.  Hopkins,  135. 

Booth  V.  Creswicke,  167. 

Borell  V.  Dann,  187,  239,  250,  258,  318, 

36.3. 
Bosanquet  v.  Dashwood,  377. 
Roson  V.  Statham,  279. 
Botbomley  v.  Squire,  366,  368. 
Bolt  V.  Smith,  199,  212. 
Boursot  V.  Savage,    51,    236,    259,    260 

261. 
Boweni;.  Evans,  44,  51,  312,  314,  318, 
320,  321,  367,  384 

—  V.  Kir  wan,  190,  191. 
Bower  v.  Cooper,  187,  363. 
Bowes  V.  Foster,  388. 

Bowles  V.  Stuart,  96,  261,  276,  298,  380. 

Boyd  V.  Belton,  130. 

Boynton  v.  Hubbard,  221. 

Boyse   v.  Russborough,    183,    184,    193, 

195. 
Bozon  V.  Williams,  142,  250,  251. 
Brace  v.  Duchess  of  Marlboroua'h,  324, 

370. 
Brackenbury  v.  Brackenbury,  375,  376. 
Braddick  v.  Mattock,  443. 
Bradford,  Earl  of,  v.   Earl  of  Roniney, 

421,455. 
Bradley  v.  Bosley,  336. 
Bradwin  v.  Harpur,  449. 
Brandling  v.  Plummer,  92. 
Brandlyn  v.  Ord,  316. 
Breadalbane,   Marquis    of,   v.    Chandos, 

407,  421,  422. 
Brealey  v.  Collins,  358. 
Bree  v.  Ilolbecli,  104. 
Brennan  v.  Bolton,  136. 
Brent  v.  Brent,  125,  380,  394. 
Bridgman  v.  Green,  51,  191. 
Brigi;s,  ej:  parte,  302. 
Erigham  v.  Tillinghast,  213. 
Bright  V.  Eynon.  47. 

—  V.  Leu'erton,  300,  309. 
Briglit's  Trust,  Re,  240,  252,  254,  255. 
lirinkley  v.  Ilann,  185. 

Brisbane  v.  Atlams,  224. 

—       V.  Dacres,  402,  403. 
Bristow  I'.  Whitmore,  114. 
Briti.-h  Linen  Co.  v.  Caledonian  Insur- 
ance Co.,  139. 
Broadbent  v.  Barlow,  236,  239. 
Brockwell's  Case,  340. 
Broderick  v.  Broderick,  53,  298. 
Bromley  v.  Smith,  43, 187,  311,  366,  393. 
Brooke" f.  Gaily,  194. 

—  V.  Lord  Mostyn,  125,  353,   367. 

404. 


TABLE  OF  ENGLISH  CASES  CITED. 


Brooke,  Lord,  r.  Roundthwaitc,  Go,  75, 

82,  359,  360,  301,  390. 
Brookman  v.  Rothscliikl,  349. 
Brooksbauk  v.  Smith,  304,  436. 
Brotherton  v.  Ilatt,  2.38. 
Broughton  v.  Broiighton,  154,  156. 

—        V.  Ilutt,  134,  401,  406,  436, 
454. 
Brown  v.  Kennedy,  171,  429,  454. 
Brown  v.  Brown,  288. 

—  V.  Edcincton,  107. 

—  V.  Keniiitx)n,  284,  285. 

—  V.  Montgomery,  109. 

—  V.  Thorpe,  130,  132. 
Browne,  He,  161. 

—  V.  Cross,  304,  305,  310. 
Bro\vnmg  v.  Morris,  377. 
Brownsword  v.  Edwards,  294. 
Brumfit  V.  Morton,  244. 
Bruuton  v.  Lister,  82. 

Brydges  v.  Branfill,  44,  96,  372,  381. 
Bu'ckeli  v.  Bleukhorn,  274. 
Buckle  V.  Mitchell,  227,  230,  235. 
Bufe  V.  Turner,  122. 
Bulkley  v.  Wiltbrd,  125,  171,  274. 
Bullock  V.  Downes,  301,  404. 
Burke  v.  Prior,  100,  1 29. 

—  V.  Rogerson,  123. 
Burnell,  ex-pnrte,  162. 

—  V.  Brown,  103. 

Burnes  v.  Pennell,  74,  93,  115,  116. 
Burrowes  v.  Lock,    69,    189,    333,   341, 

342. 
Burrows  v.  Walls,  300,  301,  303. 
Burton  v.  Blakemore,  382. 

—  V.  Knight,  288,  291. 

—  V.  Wookey,  182. 
Bury  V.  Oppenheim,  180. 
Bushby  v.  Ellis,  341. 

Bushell  V.  Bushell,  264,  265,  265. 
Butcher  v.  Butcher,  45,  269,  273. 
Butler  V.  Miller,  183,  187, 189. 

—  V.  Mulvihill,  147. 

—  V.  Lord  Portarlington,  248. 
Butterworth  r.  Walker,  432. 
Buxton  V.  Lister,  363. 

Byrne  v.  Vivian,  344. 
Byrne  v.  Godfrey,  275. 


Cadmak  v.  Horner,  94,  357. 
Cadogan  v.  Kennett,  196,  199,  201,  210. 
Caillaud  v.  Estwick,  209,  212. 
Cairncross  v.  Lorimcr,  127. 
Calcraft  v.  Roebuck,  291. 
Callaghan  v.  Callaghan,  182. 
Calverley  v.  "Williams,  424,  455, 
Campbell  v.  Fleming,  328. 

—  V.  French.  453. 

—  V.  Hooper,  145. 

—  V.  Leech  441. 


Campbell  v.  Pennsylvania  Life  Insurance 
Co.,  161. 

—  V.  "Walker,  158,  159. 
Campion  v.  Cotton,  202. 

Cane  v.  Lord  Allen,  165,   166,  168,  173, 

175. 
Cann  v.  Cann,  297. 
Cannan  v.  Reynolds,  445. 
Cannock  v.  Jauncey,  98,  259. 
Carew's  Estate,  Be,  225,  262,  263 
Carey  v.  Carey,  1 78. 
Carleton  v.  Earl  of  Dorset,  218. 
Carpenter  v.  Heriot,  179. 
Carpmael  v.  Powis,  64,  408,  429,  432. 
Carte  v.  Carte,  280. 
Carter  v.  Boehm,  72,  119,  120. 

—  V.  Carter,  140, 141,  142,  234,  256, 

313,  314,  316,  441,442. 

—  v.  Palmer,  153, 167, 168,171, 175, 

344. 
Cartledge  v.  Radbourne,  350,  387. 
Carver  v.  Richards,  272. 
Casborne  v.  Barsham,  143, 150,  151, 163. 

166,  179,  180,  183. 
Case  V.  James,  138,  313,  321. 
Casey's  Trust,  Ee,  287. 
Castleton  v.  Turner,  452. 
Caton  V.  Caton,  136. 
Cator  V.  Burke,  322. 

—     V.  Lord  Pembroke,  407. 
Cawdor,  Earl  of,  v.  Lewis,  129. 
Cazenove  v.  British  Equity  Ins.  Co.,  73. 
Cecil  V.  Butcher,  374,  375,  376. 
Chadwick  v.  Chadwick,  .366. 

—  V.  Turner,  266. 
Chalmer  v.  Bradley,  159,  303,  304. 
Chamberlains  v.  Agar,  275. 

—  V.  Chamberlaine,  275. 

Chambers  t;.  Crabbe,  ISO,  217,  218. 

—  V.  Howell,  182. 

—  V.  Minchin,  448. 

—  V.  "Waters,  160,  162. 
Champion  v.  Rigby,  163,   165,  166,  302, 

305,  307,  311,  391. 
Chanter  v.  Hopkins,  70, 107,  410, 
Chapman  v.  Emery,  202. 

—  V.  Gibson.  438,  443. 

—  V.  Speller,  105. 
Chappell  V.  Gregory.  104,  364. 
Charlesworth  v.  Jennings,  64,  65. 
Charlton  v.  Coombs,  352,  354,  380. 
Charter  v.  Trevelyn,   173,  175,  300,  3>2, 

310,  311. 
Chennell  v.  Martin,  52, 
Cheslyn  v.  Dalby,  166,  167. 
Chester  v.  Spargo,  92,  110,  3C(1. 
Chesterfield  v.  jansen,  43,  46,  297. 
Childers  v.  Childers,  375. 
Ching  V.  Ching,  447. 
Cholmondeley  v.  Cluiton,  300,  304,   305, 

307. 


TABLE  OF  ENGLlSn  CASES  CITED. 


Chuck  V.  Cremer,  290. 

Churchill  v.  Grove,  2G7. 

Clark  V.  Holland,  322. 

Clanricarde,  Marquis  of,  v.  Henning,  165, 

305,  307,  311,  312,  3<)1. 
Clapham  «.  Shilleto,  70. 
Clare  Hall  v.  Harding,  129,  133. 
Clark  V.  Burgh,  427. 

—    V.  Malpas,  194,  344,  371. 
Clarke  v.  Bickers.  427. 

—  V.  Cobley,  148. 

—  V.  Dickson,  48,  75,  92,  329,  330, 

336. 

—  «;.  Grant,  364,  418. 

—  V.  Mackintosh,  76,   77,  78,    359, 

360,  390. 

—  V.  Manning,  43. 

—  V.  rarker,'"223. 

—  V.  Sawyer,  146,  195. 

—  V.  Swaile,  157. 

—  V.  Tipping,  95,  173,  174. 

—  V.  Wright,  204,  227,  232,  233. 
Clarkson  v.  Ila'uway,  190,  191,  192,  385. 
Clavering  v.  Thomas,  130. 

Clegg  V.  Edmondson,  182,  302,  305,  306, 

307,  312,  391. 
Cleland  v.  Leech,  342. 
Clements  v.  Hall,  182,  302,  306. 

V.  Welles,  241,  243,  257,  317. 
Clermont,  Viscount,  v.  Tasburgh,  359. 
ClifTord  v.  Brooke,  373. 

—  V.  Terrell,  191,  192. 
Clifton  V.  Cockburn,  398,  401,  436. 
Clinan  v.  Cooke,  135,  136,  418. 
Clowes  V.  Higginson,  418,  435,  455,  456. 
Clunn,  Re,  288. 

Cobbett  V.  Brock,  193,  254,  260,  312. 
Cochrane  v.  Chambers,  209. 

—        V.  Willis,  406,  431,  432. 
Cock  V.  Richards,  223. 
Cockroft  V.  Sutcliffe,  269. 
Cockell  V.  Taylor,    187,    190,   297,    300, 

322,  323. 
Cockerell  v.  Cholmeley,  297,  300,  419, 

442,  443,  455. 
Cocking  V.  Pratt,  298,  398,  401,  406,  414. 
Cockshott  V.  Bennett,  215. 
Colby  V.  Gadsden,  81,  82,  83,  &2,  358, 

359 
Colclough  V.  Bolger,  344,  353. 

—  V.  t?terum,  317. 
Cole  V.  Gibbons,  297. 

—  V.  Gibson,  194,  221. 
Coleman  v.  Mellerish,  166,  167. 

—  V.  Riches,  111. 

—  V.  Wallis,  215. 
Colemore,  Be,  282,  283, 
Coles  V.  Hulme,  435. 

—  V.  Jones,  322. 

—  V.  Sims,  235,  246. 

—  V.  Trecothick,  157,  15!!,  187. 


Collett  V.  Morrison,  421,  422. 
Collier  v.  Brown,  186,  187. 

—  V.  Jenkins,  64,  362,  363. 
Collins  V.  Archer,  320. 

—  V.  Blantern,  388. 

—  V.  Evans,  57. 

—  V.  Hare,  190,  193. 
Colombine  v.  Penhall,  202,  282,  284. 
Colpoys  V.  Colpoys,  452. 

Colt  V.  Woollaston,  43,  44,  372. 
Colyer  v.  Clay,  406,  431. 

—  V.  Finch,  140,  141,  240.  251,  259 
Conyers  v.  Ennis,  94. 

Cook  V.  Pritchard,  285. 

—  V.  Rogers,  286. 

—  V.  Wolton,  396. 
Cooke,  ex-parte,  287. 

—  V.  Burtchaell,  181. 

—  V.  Clayworth,  147. 

—  V.  Greeves,  125. 

—  V.  Lamotte,    183,   190,   191,    193, 

386,  387. 

—  V.  Setree,  166. 

—  V.  Walker,  211. 
Cookson  V.  Lee,  259. 
C'oonier  v.  Bromley,  382. 
Coope  V.  Creswell,  214. 
Cooper  V.  Joel,  126,344. 

Cooper  V.   Phibbs,  346,   398,   399,  400^ 

401,  430. 
Copis  V.  Middleton,  186,  196,  199. 
Coppin  V.  Fernyhough,  241. 
Cordingley  v.  Clieeseborough,  67. 
Corlettw.'Radcliffe.  199,  205. 
Corley  v.  Stafford,  171. 
Corneforth  v.  Geer,  446. 
Cornfoot  v.  Fowke,  69. 
Corry  v.  Cremorne,  321. 
Cory  V.  Cor  J',  147. 

—  V.  Eyre,  142,  234,  321,  380. 

—  V.  Gertchen,  148,  382. 
Cesser  v.  Collinge,  249. 
Cotching  V.  Bassett,  357. 
Ccthaj' V.  Sydenham,  251. 

Cottani  V.  Eastern  Counties  Railway  Co., 

138,  142,  312,  314,  315,  386. 
Cotterell  v.  Purchase,  51. 
Coulson  V.  AlUson,  182,  193. 
Couturier  v.  Hastie,  430, 
Coverley  v.  Burrell,  362. 
Coward  v.  Hughes,  401,  454. 
Cowell  V.  Watts,  3u7. 
Cowen,  ex-paric,  288. 
Cowper  V.  Cowper,  275. 
Cox  V.  Bruton,  398,  408,  414,  419,  424, 
429,  437,  4:.4. 

—  V.  Coventon,  240,  241,  254,  255,  362, 

390. 

—  V.  Middleton,  80,  358, 
Cranston  v.  Mar.^hall,  70. 
Cranston,  Lord,  v.  Johnstone,  160,  389 


TABLE   OF  ENGLISH  CASIOS  CTTKD. 


Crawshay  v.  Thornton,  93, 

Crciigh  v.  Blood,  14(). 

Crcp:an  v.  Cullen,  319. 

Cridland  v.  De  Mauley,  4*7,  369,  3Y2. 

Cripps  V.  Jee,  389. 

Croft  V.  Graham,  344. 

Crofton  V.  Ormsby,  244,  246. 

Crofts  V.  Middleton,  92. 

Croker  v.  Ma-tin,  200,  230. 

Crosby  v.  Middk^on,  427. 

Cross  V.  Spri<rge,  89 

Crosskey  v.  Bank  of  Walos,  373. 

Crosskill  v.  Bower,  154,  156. 

Crowdy  v.  Daj',  1 64. 

Crow  i.  Ballard.  143,  297,  344. 

Cruikshank  v.  M'Vicnr,  307. 

Cullen  r.  O'Meara,  243, 

Cullen,  Trustee,  v.  Johnson,  67,  91. 

Oullingworth  v.  Lloyd,  215,  393. 

Cumberlege  v.  Law.son,  410. 

Currie  v.  Goold,  402. 

—  V.  Nind,  230. 
Curtis  V.  Curtis,  379. 

—  V.  Perry,  288,  375  444. 

—  V.  Price,  199. 

Ciirzon  V.  Belworthy,  186,  191,  366,  382. 
Constance,  v.  Constance,  194. 
Cutts  V.  Salmon,  164. 

Dacre  v.  Gorges,  436,  454. 
Baking  v.  Whimper,  227,  230. 
D'Albiac  v.  D'Albiac,  95,  154,  210,  341. 
Dalby  v.  PuUen,  95. 
Dale,  V.  Hamilton,  135. 
Dally  V.  Wonham,  346,  390. 
Daiston  V.  Coat^worth,  275. 
Daly  V.  Kelly,  166. 
Dauiel  v.  Mitchell,  61. 
Daniels  v.  Davison,  246. 
Daun,  V.  Spurrier,  129,  139. 
Danvers  v.  JNIanning,  449. 
D'Arcv  V.  D'Arcy,l94. 
Darlev  »'.  Singleton,  183. 
Darliiigtou  v.^Hamillon,  62,  81,  244,  250, 
257. 
—         V.  Pulteney,  444. 
Daubeny  v.  Cockburn',  51,  272. 
Davenport  v.  Stafford,  352. 
Davey  v.  Durrant,  346. 
Davidson  v.  Tulloch,  374. 
Davies  ii  Cooper.  95,  98. 

—  V.  Davies,  100,  130, 132,  178, 180, 

387,  390. 

—  V.  Fit  ton,  418. 

—  V.  Marshall,  134. 

—  V.  Ottv,  375,  392. 

—  D.  Thomas  211,  317.  318. 
Davia  v.  Abraliam,  171. 

_     V.  Chanter.  125,  434. 
^     V.  Duke  of  Marlborough,  187,  223, 
344. 


Davis  V.  Morier,  398,  401 

—  V.  Shepherd,  65,  432. 

—  V.  Lord  Strathmore,  267. 

—  V.  Symonds,  392. 

—  V.  Uphill,  269,  270,  271. 
Davison  v.  Robinson,  286. 
Davoe  v.  Fanning,  159. 
Dawes  v.  Betts,  243. 
Dawson  v.  Collis,  331. 

Dawson  v.  Mussey,  177,  178,  311. 

—  V.  Prince,    236,    239,   256,   312, 

313,  314. 

—  V.  Sadler,  289. 
Day  V.  Newman,  189. 
Dearie,  v.  Hall,  142. 
Debenbam  v.  Ox,  222,  392. 
Deere  v.  Guest,  45. 

De  Hoi^htun  v.  Money,  233. 

Del  Mare  v.  RoLello,''449,  450,  453. 

De  Manneville  v.  Crompton,  73,  219,  220, 

De  Mattos  v.  Gibson,  235. 

De  Montmorency  v.  Devereaux,  297,  298, 

387,  391, 
Dendy  v.  Gary,  126. 
Denne  v.  Light,  73,  93. 
Dent  V.   Bennett,    108,    183,    190,    192, 

390. 
Denton  v.  Donner.  162,  189,  387. 

—  V.  Macneil,  82,  83,  87,  307. 
Denys  v.  Shuckburgh,  397,  398.  436. 
Deposit  and  General  Life  Assurance  Co. 

V.  Ayscouuh,  48. 
Dettmar  v.  Metropolitan  and  Provincial 

Bank,  236. 
Devaynes,  v.  Noble,  425. 
Devenish  v   Baines,  275. 
Devonshire,  Duke  of,  v.  Eglin,  135. 
Dew  V.  Clarke,  146. 
Dilkes  V.  Broadmead,  214. 
Dimes  v.  Proprietors  of  Grand  Junction 

Railway  Co.,  162. 
Dimmock  v.  Hallett,  74,  82,  83,  84,  85, 

92,  363. 
Dimsdale  v.  Dimsdale,  181,  302. 
I)ixon  V.  Baldwin,  331. 
Dixons  I).  Moiikland  Canal  Co.,  402,  403. 
Dobell  V.  Hutchinson,  64. 

—  V.  Stevens,  80,  85,  93,  98,  326, 388 
Dobson,  V.  Land,  162. 

Dodds  V.  Hills,  142,  237,  239,  254,  312, 

313,  316,  321,  323. 
Doe  V.  Alsop,  205. 

—  V.  Bevan,  286. 

—  V.  Evans,  453. 

—  V.  Ford,  388. 

—  V.  Howells,  388. 

—  V.  Lewis,  217. 

—  V.  Manning,  227,  232. 

—  V.  Roberts.  294,  374,  375,  376,  451. 

—  V.  Routledge,  199. 

—  V.  Rusham,  229,  230. 


TABLE  OF  EKGLISH  CASES  CITED. 


Do^gett  V.  Emerson,  61,  77,  311. 
Dolman  v.  Nokes,  9*7,  98,  390. 
Dommett  v.  Bedford,  280. 
Donaldson  v.  Giilott,  51,  138,  142, 
Donovan  v.  Fricker,  346,  347. 
Dooliu  V.  Ward,  224. 
Door  V.  Geary,  449,  450. 
Douglas  V.  Culverwell,  194,  346. 
Dover  v.  Buck,  157. 
Dowell  V.  Dew,  136,  234,  441. 
Dowle  V.  Saunders,  138,  140,  386. 
Downes  v,   Grazebrook,   157,   158,   159, 
162. 

—  V.  Jennings,  217,  218,  220,  305, 

—  ».  Power,  240. 
Draper  v.  Corlase,  130. 
Draper's  Co.  v.  Davis,  1 66. 
Orewe  v.  Corp,  62,  361,  362. 

—  V.  Lord  Norbury,  265, 
Drewry  v.  Barnes,  402,  407. 
Driscoll  V.  Bromley,  175. 
Druiff  V.  Parker,  4i9. 

Dryden  v.  Frost,  234,  248,  251,  260. 

Drysdale,  v.  Mace,  80,  82,  91,  360, 

Dunbar  v.  Tredennick,  234,  297. 

Dundas  v.  Dutens,  209. 

Dunnage  v.  \\'hite,  125,  434, 

Duranty's  Case,  339,  340. 

Durham,  Earl  of,  v.  Legard,  62,  339,  362, 

363,  431, 
Button  V.  Peel,  275. 
Dyer  v.  Dyer.  132. 

—  V.   liargrave,   79,    100,    339,   359, 
361,  362,  363. 

Dykes  v.  Blake,  63,  81 


Eads  v.  "Williams,  293. 
Earl  V.  Stocker,  288. 
Early  v.  Garrett,  327. 
Estubrook  v.  Scott,  344. 
Eastham  v.  Wilkinson,  261,  262. 
East  India  Co.  v.  Donald,  384,  389,  406, 
414,  454. 

—  V.  Uencliman,     93,    172, 

174,  366. 

—  V.  Neave,  406. 

—  V.  Vincent,  129. 
Eaton  V.  Bennett,  422. 

Ede  V.  Knowles,  208. 
Edgecumbe  v.  Stranger,  174,  289,  260. 
Edgeworth  v.  Eilguworth,  318. 
Edwards  v.  Browne,  350. 

—  V.  Burt,  187. 

—  V.  Glynn,  285. 

—  V.  Harben,  209. 

—  V.  M'Cleav,   54,    78,   100,   102, 

333,  346,  347,  350,  390. 

—  V.  Meyrick,  143,  150,  152,  165, 

166^  167,  170,  302,  391. 

—  V,  Moi'gan,  453,  , 


Edwards  v.  Pike,  279. 

—  V.  Williams,  170. 

—  V.  Warwick,  82,  92  98. 
Eicboltz  V.  Bannister,  105. 
Ekins  V.  Tresham,  85. 

Elard  v.  Llandaff,  98,  358. 

Elliott  V.  Ince,   145. 

Ellis  V.  Coleman,  333,  339  341. 

Elsey  V.  Adams,  394. 

Elwes  V.  Elwes,  428. 

Emmerton  v.  Matthews,  106. 

England  v.  Downs,  217,  218,  219,  220. 

Ernest  v.  Vivian,  302,  306,  307,  312. 

Esdaile  v.  La  Nauze,  51,  314,  315. 

Espey  V.  Lake,  152,  178,  179,  195,  236, 

254,  383. 
Espin  V.  Pemberton,  237,  256,  259,  260, 

261. 
Estwick  V.  Caillaud,  212. 
Etty  V.  Bridges,  142. 
Evans  v.  Bickuell,  46,  53,  137,  140,  149, 
277,  333,  352,  389,  391. 

—  V.  Blood,  146. 

—  V.  Bremridge,  123,  411. 

—  V.  Carrington,  95. 

—  V.  Edmonds,  54,  55. 

—  V.  Jones,  433. 

—  V.  Lewellyn,  143,  187,  190,  193, 

—  V.  Fowler,  69. 

—  V.  Richardson,  288. 

—  V.  Williams,  267. 

—  V.  Wyatt,  60,  68. 
Evelyn  v.  Templar,  227. 
Evroy  v.  Nicholas,  148,  382. 
Eyre,  ex-parte,  161,  382. 

—  V.  Burmester,  259,  298,  312,  321. 

—  V.  Dolphin,  241. 

—  ».  M'Donnell,  381. 

—  V.  MDowell,  266. 
Eyton  V.  Eyton,  276. 


Fagg  v.  Dobie,  277. 
—   V.  James,  313. 
Fairhead  v.  South  ee,  412. 
Falck  V.  Gooch.  435. 
Falcke  v.  Gray,  187,  357,  363,  411. 
Falkner  v.  O'Brien,  52,  185,  190,  379. 
Fallon  V.  Robins,  418,  422. 
Fairbrother  v.  Gibson,  76,  77,  80. 
Farewell  v.  Coker,  398. 
Farler  v.  I,ane,  192. 
Farley,  ex-parte,  160. 
Farmer  v.  Farmer,  193. 

—      V.  Martin,  268,  272. 
Farr  v.  Sheriffe,  428, 
Farrant  v.    Blaiichford,    180,    180,    288, 

298,  302,  oU3. 
Farrow  v.  Kees,  140,  252. 
Fearon  v  Desbrisay,  269. 
Felgate's  Case,  339. 


8 


TABLE   OF  ENGLISH  CASES  CITED. 


Fellowes  v.  Lord  Gwydvr,  88,  94,  364. 
Fenton  v.  Browue,  82,  83,  392. 
Feret  v.  Hill,  88,  329. 
Fern}'hough  v.  Leader,  46,  218,  355. 
Ferrarsr.  Cherry,  242,  316. 
Ferres  v.  Ferres,  193. 
Fewster  v.  Turner,  362. 
Field  V.  Boland,  234. 
Fife  V.  Clayton,  418,  4.56. 
Filmer  v.  Gott,  44, 192,  389. 
Finch  V.  Newnham,  275. 
—    V.  Shaw,  259,  321. 
Fisher  v.  Moon,  134,  135. 
Fisk  V.  Barber,  160. 
Fitzgerald  v.  Falconberg,  259. 
Fitzsimmon  v.  Joslin,  1 14. 
Flight  V.  Barton.  80,  92,    103,  244,  255, 
25Y. 

—  V.  Booth,  69,  63, 92,  243. 

Flint  V.  Woodin,  81,91,  92,  94,  99,  225. 

Flook  V.  Jones,  285. 

Foley  V.  Hill.  304. 

Fonnerau  v.  Poyntz,  452. 

Forbes  v.  Ross,  156. 

Ford  V.  Harrington,  375,  378. 

_    V.  Olden.  162,  194. 

_    V.  While,  266,  321. 
Forteblow  v.  Shirley,  103. 
Foster,  Be,  166. 

—  V.  Blackstone,  142. 
_     V.  Charles,  56,  325. 

Fowkes  V.  Manchester  and  London  Life 

Assurance  Co.  121. 
Fowler  v.  Fowler,  421,  422,  423. 
V.   Scottish  Equitable  Life    As- 
surance Society,  424,  455. 
Fox  V.  Macreth,  97, 158,  186,  349. 
Fox's  Case,  351. 
Frail  v.  EUis,  240,  249,  260. 
Franks  v.  Bollans,  158,  307. 

—  V.  Weaver,  43. 
Fraser  v.  Levy,  282. 

—  V.  Thompson,  189,  202,  284. 
Frazer  v.  Jor.es,  137,  321,  322. 

Freer  v.  Hesse,  267.  ■, 

French  v.  French,  109,  200,  204,  205. 
Frost  V.  Brewer,  361. 
Frowd,  ex-parte,  116. 
Fuller  V.  Abrahams,  224. 
_    V.  Bennett,  259,  260. 

—  V.  Wilson,  326. 
Fyler  v.  Fyler,  391. 


Gale  V.  Lindo,216,  342. 
—     V.  Williamson   199. 
Galloway  v.  Corporation  of  London,  164. 
Gallon  V.  Emuss,  224. 
Gardner  v.  Gardner,  147,  194,  195. 

—       V.  Ogden,  175. 
Garrard  v.  Frankel,  413,  416,  438,  455. 


Garrard  v.  Grinling,  417,  456, 
Garstin,  ex-parte,  278. 
Garth  v.  Cotton,  43,  195,  379. 
Gartside  v.  Gartside,  291. 

—      V.  Isherwood,  146,  186,  18Y. 
Garvey  v.  M'Minn,  176,  190,  193. 
Gask.'ll  V.  Chambers,  162. 
Gas  Light  and  Coke  Co.  v.  Turner,  388. 
Geddes  v.  Pennington,  73,  74. 
Gedge  v.  Duke  of  Montrose,  390. 
General  Steam  Navigation  Co.  v.  Rolt 

238   239   254. 
Gerard  v.  O'Reilly,  129,  260. 
Gerhard  v.  Bates,  54,  326. 
Gibbins  v.  Philips,  285. 
Gibbons  v.  Caunt,  124. 
Gibbs  V.  Daniel,  165,  167,  170,  387. 
Gibson  v.  D'Este,  63,  346,  348,  350,  390. 

—  V.  Goldsmid,  335. 

—  V.  Ingo,  252. 

—  V.  Jeyes,  151,  164,  165,  168,  187, 

386. 
Gibson  v.  Russell,  190,  191,  192. 

—  V.  Spurrier,  103. 
Gibson's  Case,  116. 
Giddings  v.  Giddings,  151,  182. 
Gilbert  v.  Lewis,  366,  380,  394. 
Giles  V.  Giles,  354,  449,  451. 
Gillett  V.  Peppercorn,  174,  175,  306, 
Ginger,  ex-parte,  114. 

Glascott  V.  Laing,  383. 
Glasse  v.  Marshall,  43. 
Gl^-n  V.  Bank  of  England,  383. 
Goblett  V.  Bechey,  130,  453. 
Goddard  v.  Carlisle,  170. 

—  V.  Snow,  217,  218. 
Goldicutt  V.  Townsend,  73,'202. 
Goldsmith  v.  Bruning,  221. 

—  V.  Russell,  199. 
Gompertz  v.  Bartlett,  58. 

—  V.  Denton,  328. 
Goodman  v.  Sayers,  289,  402,  447. 
Goodricke  v.  Browne,  277. 

—  V.  Taylor,  282,  283. 
Goram  v.  Sweeting,  09. 

Gordon,  Lord,  v.  Marquis  of  Hertford, 

417. 
Gordon  v.  Gordon,  124,  125,  404,  434. 

—  V.  I'armelee,  77,  84. 

—  V.  Shaw,  370. 
Gore,  ex-pnrte,  161. 

—  V.  Gibson,  147. 

—  V.  Stackpoole,  317,  318. 
Gorsuch  V.  Cree,  62. 

Goss  V.  Lord  Nugent,  416. 
Govett  V.  Richmond,  131. 
Gowland  v.  De  Faria,  187,  297,  SOL 
Goviiiour  V.  Pigge,  125. 
Griham  v.  Chapman,  281,  282,  283 

—       V.  O'Keefe,  200,  206,  208. 
Grant  v.  Campbell,  240. 


TABLE   OF  ENGLISH  CASES  CITED. 


Grnnt  v.  Munt,  SO,  100,  359,  361. 

Grayi;.  Cliiswell,  425. 

Grazebrook  v.  Percival,  220. 

Great  Luxembiirsj  Railway  Co.  v  Mag- 
nay,  52,  161,"339,  348. 

Great  Northern  Railway  Co.  v.  Lanca- 
shire, &c.  Hailwaj^  Co.,  135. 

Great  Western  Railway  Co.  v.  trips,  402. 

Green  v.  Bank  of  England,  3.52. 

—  V.  Barrett,  47,  369,  372, 

—  V.  Baverstocke,  224. 

—  V.  Gosden,  96. 

—  V.  Lowes,  214. 
Green  v.  Kixon,  41,  42,  278. 
Greenfield  v.  Bates,  171. 

—  V.  Edwards,  95,  122, 123, 137, 

138,  248. 
Greenhill  v.  Church,  288. 
Greenlaw  v.  Hugell,  162. 

—  V.  King,  152,  182. 
Greenslade  v.  Dare,  235,  239,  240,  248, 

254,  262,  321. 
Greenwood  v.  Bairstow,  244. 

—  V.  Greenwood,  125. 
Gregory  v.  Gregory,  158,  301,  305,  307, 

311. 

—  V.  Mighell,  129. 

—  V.  Pilkington,  414. 

—  V.  "Wilson,  407. 

Gresley  v.  Mouslev,  165,  166,302,  304, 

305,  307,  31i;'348,  371,  379. 
Grey  v.  Pearson,  451. 
Grieveson  v.  Kirsoj^p,  433. 
Griffin  V.  Clowes,  138. 
Griffith  V.  Spratley,  186. 
Griffiths  V.  Kobbins,  190,  192,  193. 
Griggs  V.  Staplee,  219,  220. 
Grisley  v.  Lother,  220. 
Grissell  v.  Peto,  65. 
Grogan  v.  Cooke,  212. 
Grosvenor  v.  Green,  80,  243,  255. 

—  V.    Sherratt,    190,    193,   302, 

311. 
Grove  v.  Bastard,  391. 
Groverw.  Hugell,  158,  162. 
Groves  v.  Groves,  375,  376. 

—      V.  Perkins,  95,  101,  392, 
Grylls,  cx-pnrte,  158. 
Gubbins  v.  Creed,  184. 
Gurney  v.  Womersley,  58. 
Guy  V.  Pearkes,  209. 
G  Wynne  v.  Heaton,  187,  344. 


Haiqh  v.  Ilaigh,  291,  477.' 
^ale  V.  Allnutt,  283. 

^    V.  Saloon  Omnibus  Co.  212. 
fiall  V.  Coiider,  105. 

—  V.  Hall.  184. 

—  V.  Hallett,  161,  349. 

—  V.  Koyes,  158. 


Hallt>.  Potter,  221. 
—    V.  Smith,  212. 
HaUows  V.  F.  rnie,  64,  74,  95,  391. 
Harner  v.  Tilsley,  133. 
Hamilton  v.  Ba  1,  374. 

—  V.  Grant,  3o4. 

—  V.  Kirwan,  384. 

—  V.  Royse,  236,  241,  242,  259. 

—  V.  Watson,  122,  123. 

—  V.  Wright,  154,  158,  159. 
Hammersley  v.  Ue  Bid,  89,  90,  136,  342. 
Hamj^den  v.  Hampden,  276. 
Hampshire  v.  Peirco,  449. 

Hampson  w.  H:inipson,  354. 
Hanbury  v.  Litchfield,  244. 
Hankey  v.  Vernon,  407. 
Hannah  v.  Hodgson,  148. 
Hannington  v.  Du  Chatcl,  222. 
Hanson  v.  Keating,  52,  335,  336. 
Harbidge  v.  Wogaii,  428. 
Harbin  v.  Darby,  156. 
Harcourt  v.  Wliite,  129,  304. 
Harding  v.  Wickham,  290,  292. 
Hardingham  v.  Nicholls,  318,  319,  870. 
Hardman  v.  Booth,  49. 

—  V.  Ellames,  370. 
Hare  v.  Horwood,  407. 
Hargreave  v.  Everard,  194. 
Hargreaves  v.  Rothwell,  259. 
Harman  v.  Richards,  199,  201. 
Harnett  v.  Yeilding,  412. 
Harris  v.  Ingledew,  370. 

—  V.  Kemble,  78,  93.  95,  358,  359. 

—  V.  Pepperell,  414,  454,  455. 

—  V.  Rickett,  283. 

—  V.  Tremenheere,  170. 
Harrison,  ex-par te,  160,  161. 

—  V.  Coppard,  323. 

—  V.  Forth,  316. 

—  V.  Gardiner,  356. 

—  V.  Guest,  183,  186,   189,   191, 

l'.»2,  238,  371. 

—  V.  Randall,  273. 

—  V.  Mayor,  <fec.  of  Southampton, 

294. 
Harrod  v.  Harrod,  146. 
Harrynian  v.  Collins,  250,  254. 
Hart  V.  Windsor,  104. 
Hartopp  V.  Hartopp,  180.  191,  352,  391. 
Hartwell  i-.  Colvin,  304,  305. 

—  V.  Hartwell,  222. 
Harvey  v.  Cooke,  125,  404. 

—  V.  Mount,  193,  393. 

—  V.  Shelton,  292,  293. 

—  V.  Youns:,  83,  84,  85. 
Harwood  v.  Tooke,  222,  224. 
Hasell,  ex-parte,  3u7. 
Ilastie  V.  Couturier,  406. 
Hatch  V.  Hatch,  177,  178,  306. 

—  V.  Searles,  248. 
Haven  v.  Foster,  402. 


10 


TABLE  OF  ENGLISH  CASES  CITED. 


Hawkins  v.  Bone,  14Y. 
Hawlev  V.  Cramer,  160,  168,  169,  224. 
liaycraft  v.  Creasy,  57,  82,  325. 
Haywood  v.  Cope^  76,  77,  78,  83,  95,  359, 

363,  390. 
Hazard  v.  Irwin,  54. 
Head  v.  Godlee,  181. 
Ileaiie  v.  Ro2,ers,  99. 
Heap  V.  Tonge,  224. 
Heathcoate  v.  Paignon,  187. 
Heming  v.  Swinerton,  289. 
Hemingway  v.  Hamilton,  88. 
Hemmer  v.  Cooper,  88. 
Henderson  v.  Cook,  407. 

—  V.  Hudson,  62,  359. 

—  V.  Lacon,  47,  48,  68,  69,  85, 

110,  326,  369. 

—  V.  Royal  British  Bank,  330. 
Henley  «.  Stone,  374. 

Hennequin  v.  Naylor,  109,  388. 
Herbert  v.  Bulkley,  44. 
Hercy  v.  Dinwondy,  303. 
Hern  v.  Nicbolls,  112. 
Heme  v  Meeres,  151. 
Heron  v.  Heron,  182,  298. 
Hervey  v.  Hervey,  440. 

—       V.  Smith,  247. 
Hesse  v.  Briant,  165,  176. 
Hewitt  V.  Loosemore,  141,  23V,  251,  256, 

2(50,  262. 
Hewlins  v.  Shipham,  134. 
Hicliens  v.  Congreve,  373. 
Hiclj  V.  Pliilipps,  362. 
Hickes  v.  Cooke,  162,  194,  303,  304,  305, 

306. 
Hicks  V.  Morant,  309. 
Hiekson  v.  Lombard,  383. 
Hiern  v.  Mill,  234,  248,  251, 
Higgins  V.  Joyce,  165. 

—      V.  Samels,  78,  82,  83,  357,  359. 
Higginson  v.  Clowes,  359,  412. 

—  V.  Kelly,  287. 
Higinbotbam  v.  Ilolme,  286,  287. 
m\\,ex-p'irte,l62,2S1. 

—  V.  Buckley,  65,  80,  361. 

—  V.  Gray,  88,  98. 

—  V.  Manchester  Waterworks  Co.  388. 

—  V.  Simpson,  239. 

—  V.  South  Staffordshire  Railway  Co., 

130. 
Hills  V.  Downton,  443. 

—  V.  Rowland,  428. 
Hinchinbrooke,  Lord  v.  Seymour,  268. 
Ilinde's  Lessees  v.  Longworth,  206. 
Hiiidson  v.  Wentheiill,  171. 

Hine  v.  Do.ld,  239. 
Hinton  v.  Ilinton,  184. 
Hiortis  v.  Hoiilton,  138. 
Hipkins  v.  Aniery,  251. 
Hitchcock  V.  Gi'ddings,  406,  430,  432, 
455. 


Hitchin  v.  Groom,  417. 
Hf>bbs  V.  Norton,  92,  341. 
Hobday  v.  Peters,  171,  174,  175,  111. 
Ilodgkinson  v.  Fernie,  448. 
Hodgson,  ex-par tc,  161. 

—  V.  Dean,  265. 
Hoffge  V.  Burgess,  447,  448. 
Iloghton  V.  Hoghton,  152,  180,  182,  345, 

387. 
Holbird  v.  Anderson,  212. 
Holdernest  v.  Rankin,  368. 
Holloway  v.  Headington,  203. 

—  V.  Millard,  199,  207,  208. 
Holman?;  Loj^nes,   153,   159,  163,   165, 

166,  167,  170,  175,  371. 
Holmes  v.  Coghill,  439. 

—  V.  Custance,  449,  450. 

—  V.  Penney,  200,  201,  203,  207. 

—  V.  Powell,  244,  245. 
Holmes'  Estate,  He,  170,  386. 
Holt  V.  Holt,  154. 

Holt's  Case,  116.  , 
Holworthy  v.  Mortlock,  40*7. 
Holyman,  ex-parte,  161. 
Honner  v.  Morton,  3oO,  301. 
Hood  V.  Oglander,  412. 
Hooper  v.  Clark,  132. 

—  V.  Gumm,  130. 

—  V.  Smith,  281. 
Hope  V.  Liddell,  241. 
Hopgood  0.  Ernest,  141,  251. 
Hopkins  v.  Tanqueray,  70. 
Hopkinson  v.  Rolt,  324. 
Hore  V.  Becher,  406,  431. 
Horn  V.  Horn,  209. 

—  V.  Kilkenny  <fec.  Railway  Co.  278. 
Hornby  v.  Matcham,  275. 
Horsfall  v.  Thomas,  95,  100. 
Horton    v.    Westminster    Improvement 

Commissioners,  388. 
Hotchkiss  V.  Dickson,  124. 
Hotson  V.  BrowTie,  93,  388. 
Hough  V.  Richardson,  61,  74,  77,  78. 
Houghton  V.  Lees,  223,  434. 
Hovenden  «;.  Lord  Annesley,   191,  304, 

307,  314. 
How  V.  Wehlon,  188,  194,  318,  322. 
Howard  v.  Castle,  225, 

—  V.  Clhaffers,  257. 

—  V.  Duciine,  162. 

—  V.  Earl  of  Shrewsbury,  288. 
Howden  v.  Haigh,  215. 

Howell  V.  Baker,  168. 

—  V.  Howell,  348. 
Howkins  v.  Jackson,  433,  434. 
Howland  v.  Norris,  62,  339,  361,  363. 
Hubbard  v.  Briggs,  385. 

Hudson  V.  Beauchamp,  146. 
Hughes,   ex-parte,    161,    172,    174,   346, 
340. 
—       V.  Garner,  258,  313,  367,  370. 


TABLE  OF  ENGLISH  CASES  CITED. 


11 


Hughes  V.  Garth,  369. 

—  V.  Howard,  277. 

—  V.  Jones,  361. 

—  V.  Wells,  440. 
Huguenin  v.  Basley,  51,  183,  198. 
Hiiiett's  Case,  323. 

Hume  V.  Pocock,  83,  359. 
Humphrey  v.  Olver,  268,  385,  386. 
Humphreys  v.  Pensam,  229. 
Humphries  v.  Home,  424,  456. 
Hunsden  v.  Cheyney,  130,  131, 
Hunt  V.  Elmes,  141,  256. 

—  V.  Hort,  452. 

—  V.  Matthews,  218,  275. 

—  V.  Mortimer,  286. 

Hunter  v.  Atkins,  170,  176,  177,  191. 
Hutchinson  v.  Morley,  85. 
HuttoD  V.  Cruttwell,"284. 

—  V.  Rossiter,  54,  69,  342. 
Hvde  V.  White,  224. 

Hylton  V.  Hylton,  177,  178. 

Ibbotsox  v.  Rhodes,  130,  132. 

Ingle  i>.  Richards,  158. 

Inglis  V.  Lumsden,  341. 

Ingram  v.  Thorp,  48,  83,  342,  344,  369, 

379. 
Innes  v.  Jackson,  427. 

—  Sayer,  440. 

Ireland,  Bank  of,  v.  Trustees  of  Evans' 

Charities,  137,  142. 
Irnham,  Lord,  v.  Child,  428,  429. 
Irvine  v.  Kirkpatrick,  51,  75,  83,  93,  95, 

98,  125,  366. 
Ives  V.  Medcalfe,  291,  292. 
Izon  V.  Gorton,  104. 

Jackman  v.  Mitchell,  214,  344,  392. 
Jackson  v.  Jackson,  268. 

—  V.  King,  146. 

—  V.  Rowe,  239,  252,  257,  317,  369. 
Jacobs  V.  Richards,  145,  146. 

James,  ex-parte,  154,  157,  158,  159,  161, 

165. 
Jameson  v.  Stein,  73,  74,  93,  342. 
Jar  \  is  V  Duke,  53. 
Jay  V.  Richardscn,  235,  240. 
JefFerys  v.  Jefferys,  203,  445. 
Jendwine  v.  Slade,  83. 
Jenkins  v.  Jones,  317. 
Jenkiuson  v.  Pepys,  412. 
Jenkyn  v.  Vau-han,  207,  208, 
Jenm'r  v.  Je.mer,  180,  181,  182, 
Jennings  v.  Broughton,  54,  73,  74,  75,  76, 

77,  78,  82,  83,  100,  302,  307,  382, 

390. 
Jerrard  v.  S;Hinders,  313. 
Jewson  V.  Moullon,  203. 
Johnson  v.  P'esemcyer,  169,  285, 

—  V.  Gallii-xlier,  149. 

—  V.  Lcgard,  230,  232. 


Johnson  v.  Ogilvv,  46. 

—  V.  Pye,  148. 

—  V.  Smart,  83,  860. 

—  V.  Taber,  77,  78, 
Jones  V.  Bennett,  293. 

—  V.  Caswell,  224. 

—  V.  Croucher,  233. 

—  V.  Garcia  del  Rio,  878, 

—  V.  Gregory,  44. 

—  V.  Jones,  142. 

—  V.  Just,  105,  107. 

—  V.  Kearney,  148,  235, 

—  V.  Keene,  98. 

—  V.  Marsh,  203. 

—  V.  Martin,  217. 

—  V.  I'owles,  51,  314,  317. 

—  V.  Price,  164,  165. 

—  V.  Provincial  Insurance    Co,    120, 

122. 

—  V.  Ricketts,  892. 

—  V.  Roberts,  166. 

—  V.  Smith,  237,  238,  239,  240,  241, 

244,  247,  251,  252,  254,  255, 
256,  257. 

—  V.  Stanley,  319. 

—  V.  Thomas,  137,  163,  168,  170. 

—  V.  Tripp,  166. 

—  V.  Turberville,  303. 

—  V.  Williams,  238,  242,  256. 

—  V.  Wright,  107. 
Jorden  v.  Money,  88,  89. 

Joyce  V.  De  Moleyns,  313,  320,  32L 
Joynes  v.  Statham,  417,  418, 

Kain  v.  Old,  69,  99. 
Kay  V.  Crook,  88,  342. 
—   V.  Smith,  386. 
Keat  V.  Allen,  222. 
Keates  v.  Lord  Cadogan,  100,  104. 
Keech  v,  Sandford,  154. 
Kelly  V.  Rogers,  366. 

—  V.  Solari,  406,  414, 
Kelsall  V.  Bennett,  370. 

Kebon  v.  Kelson,  20j,  227,  229,  231. 
Kemp  V.  Ro^c,  292. 
Kendall,  ex-pnrfe,  425. 

—  V.  Hulls,  260,  261. 
Kennedy  v.  Daly,  316. 

,-       V.  Green,   137,   138,  238,  248, 
261,  370. 

—  V.  Panama,  &c.  Co.  58,  59,  60, 

334. 
Kennell  v.  Abbott,  354,  451. 
Kenney  v.  Browne,  132,  254,  347. 
Kensington,  Lord,  v.  Bouverie,  348. 
Kent  V.  Freehold  Land  and  Brickmaking 

Co.  80,  95,  110,  351. 
Ker  V.  Lord  Dun2;annon,  250,  317. 
Kerrick  v.  Brans'iy,  44. 
Ki  Inc}'  V   Coussmaker,  453 
Killick  V.  Flexney,  161. 


12 


TABLE   OF  EXGLISH  CASES  CITED. 


King  V.  ITamilton,  223,  338. 

—  V.  Hamlet,  339,  344. 

—  V.  Savery,  343. 

—  V.  Wil3on,  80,  361. 
Kingsford  v.  Merry,  48,  329. 
Kirkwood  v.  Tliompson,  162. 
Kirwan  v.  CuUen,  193. 

Kisch  V.  Central  Venezuela  Railway,  75, 
79,  80,  82,  83,  87,  94,  95,  110,  111, 
256. 

Knatchbull  v.  Grueber,  64,  362,  363. 

Knight  V.  Bowver,  165,  238,  246,  248, 
304,  "307. 

—  V.  Hunt,  215. 

—  V.  Marjoribanks,  78,  96, 152,  157, 

159,"  162,  182,  185. 
Knowles  v.  Houghton,  379. 
Knox  V  Symmonds,  4^7. 


Lacet,  ez-parte,  154,  157,  161,  324,  349. 

—  V.  Ingle, 

Laehlan  v.  Reynolds,  343,  362. 

Lackersteen  v.  Lackersteen,  423. 

Lacon  v.  Liifen,  286. 

Laidlow  v.  Organ,  97. 

Laing  v.  Fidgeon,  107. 

Laird  v.  Birkenhead  Railway  Co.  129, 

135,  136. 
Lambert  v.  Lambert,  193. 
Lamlee  v.  Hanman,  216. 
Lamplugh  v.  Lamplugh,  184. 
Lancaster  v.  Evors,  371. 
Lance  v.  Xorman,  217. 
Lane  v.  Jackson,  267,  321. 

—  V.  Page,  268,  273. 
Langley  v.  Fisher,  111,  354,  390. 
Langridge  v.  Levy,  373. 
Lansdowne  v.  Lansdowne,  400. 
Lassence  v.  Tierney,  202. 
Latimer  v.  Batson,  211. 
Latouche  v.  Lord  Dunsany,  265. 
Laver  v.  Fielder,  90,  342. 

Law  V.  Law,  221,  222,  378. 

Lawless  v.  Mansfield,  163,  166. 

Lawley  v.  Hooper,  42,  344. 

Lawrence  v.  Galsworthy,  158. 

Lawrence's  Case,  64,  79,  263,*  302,  307. 

Lawrenson  v.  Butler,  440. 

Lawton  v.  Campion,  404,  434. 

Layard  v.  Maud,  137,  141. 

Leach  v.  MuUett,  63. 

Leake  v.  Young,  281,  283. 

Leakins  v.  Clissi'U,  84,  83. 

Leather  Cloth  Co.  v.  American  Leather 

Cloth  Co.,  392,  393, 
Lee  V.  Angas,  50. 

—  V.  Fernie,  271. 

—  V.  Hart,  281. 

—  V.  Jones,  99.  122,  123. 

—  V.  LockLart,  214. 


Leeds,  Duke  of,  v.  Lord  Amherst,  129, 

298.  299,  301,  304. 
Leeds  v.  Xutall,  175. 
Legge  V.  Croker,  62,  92. 
Leifchild's  Case,  368. 
Leigh  V.  Lloyd,  234,  240. 
Le  Neve  v.  Le  Xeve,  200,  266. 
Leonard  v.  Leonard,  124,404,  434. 
Lerow  v.  Wilmarth,  206. 
Leslie  v.  Baillie,  402. 

—  V.  Thompson,  62,  67,  363,  365. 
Lester  v.  Garland,  287. 

Leuty  V.  Hillas,  407,  413, 419,  437, 454. 
Lewis,  ex-parte,  349. 

—  V.  Bond,  243. 

—  V.  Hillraan,  158,  166,  173,  174. 

—  V.  Jones,  90,  215. 

—  V.  Bead,  191. 

—  V.  Rees,  229,  230. 

Leyland  v.  Illingworth,  82,  86,  339,  390. 

Leibman  v.  Harcourt,  303,  321. 

Life  Association  of  Scotland  v.  Siddall, 
299,  301,  303,  303,  307. 

Liggins  V.  Inge,  134. 

Llghtfoot  V.  Heron,  147. 

Lillie  V.  Legh,  135. 

Lincoln  v.  Wright,  135. 

Lindenau  v.  Lesborough,  119,  120,  122. 

Lindo  V.  Lindo,  298. 

Lin  don  v.  Sharp,  211. 

Lindsay  V.  Gibbs,  127. 

Linehau  v.  Cotter,  64,  343,  362. 

Lingood  v.  Crouch,  290. 

Lister  v.  Turner,  230. 

Liverpool  Adelphia  Association  v.  Fair- 
hurst,  148. 

Livingstone  v.  Reade,  205. 

Llewellia  v.  Cobbold,  179,  217. 

—  V.  Mackworth,  384. 

—  V.  Pace,  47. 

Lloyd  V.  Atwood,   125,    199,    260,    298, 
300,  324. 

—  V.  Brewster,  331. 

—  V.  Clarke,  47,  193. 

—  V.  Cocker,  421. 

—  V.  Passingham,  125,  312,  314. 
Load  V.  Green,  328, 

Loader  v.  Clark,  217,  220,  302,  390. 

Locke  V.  Prescott,  240. 

Loffus  V.  Maw,  89,  90. 

Lomax  v.  Riplev,  279,  382. 

London,  Bank  of,  v.  TyrreU,  347,  350. 

London  and  Birmingham  Railway  Co.  v. 

Winter,  418. 
London  Assurance  Co.  v.  Moses,  46,  355. 
Londonderry   and  Enniskillen  Railway 

Co.  V.  Leishman,  290. 
Longmate  v.  Ledger,  146,  150,  190,  344, 

371. 
Longmeid  v.  Holliday,  373. 
[  Lonsdale,  Lord,  v.  Littledale,  290. 


TABLE  OF  ENGLISH  CASES  CITED. 


13 


Lord  V.  Underdonck,  135. 

Lovell  V.  Hicks,  93,  115,  302,  844,  350. 

Loveridj^e  v.  Cooper,  142. 

Lowndes  w.  Laue,  76,  77,  78,  81,  91,  92. 

Lowther  v.  Carlton,  316. 

—  V.  Lowther,  173. 
Loxley  v.  Heath,  89,  90. 
Lucas  v.  Worswick,  406. 
Luceua  v.  Lucena,  442. 
Lucy,  ex-parle,  404. 
Luff«;.  Lord,  157,  383,  390. 
Lund  V.  Bliinchard,  373,  380. 
Luttrell  a.  Olmius,  274. 

Lyddon  v.  Muss,  163,  164,  165,  302,305, 

307. 
Lyde  v.  Mynn,  224. 
Lyne  v.  Lyne,  369. 

Lyon  V.  Home,  183,  191,  193,  391,  392. 
Lysney  v.  Selby,  75,  78,  80,  82,  85. 

Maber  v.  Hobbs,  259. 

M' Alpine  v.  Swift,  436,  455. 

Macarthy  v.  Decaix,  398,  401,  406. 

M'Blair  v.  Gibbes,  379. 

Macb-ide  v.  Lindsay,  355. 

M'Bryde  v.  Weekes,  302. 

M'Burnie,  ex-parte,  202. 

M'Cabe  v.  Hussey,  171. 

M'Culloch  V.  Gre^-ory,  92,  255,  343,  350. 

M'Diarmid  v.  M'Uiarmid,  190,  194. 

Macdona  v.  Swiney,  211. 

Macdonald  v.  Macdonald.  307. 

M'Donnell  v.  White,  307,  309. 

MackelUir  v.  Wallace,  125. 

M'Kenna,  Jie,  157. 

M'Kinnell  v.  Robinson,  374. 

Maclure  v.  Ripley,  95,  182. 

M'Xeill  V.  Cahill,  191,  214,  217. 

M'Queen  v.  Farqubar,  254,  316,  384,  392. 

Macreth  v.  Symons,  234. 

Maddeford  v.  Austwick,  125,  182. 

Maddox  V.  M:iddox,  258. 

Madeley  v.  Booth,  62,  64,  362,  363. 

Madeii  v.  Vee^ers,  302. 

Madrid  Bank,  He,  95. 

Magenois  v.  Fallon,  362,  363. 

Maitland  v.  Backhouse,  178,  236,  238. 

—  ?>.  Irving:,  178,  254. 
Major  V.  Major,  126. 

Maiden  v.  Menill,  397,  433,  436. 

Malet  He,  429. 

Malins  v.  Freeman,  412,  455. 

Mallalieu  v.  Hodgson,  388. 

Malmi'sbury  v.  Malmesbury,  419,  437. 

Malpas  V.  Ackland,  241. 

Man  V.  Ward,  383,  38  U 

Manby  v.  Bewickc,  146. 

Mangles  v.  Dixon,  130,  236,  322. 

—  V.  Grand  Dock  Colliery  Co.,  296. 
Manning!).  Albee,  84. 

—  V.  Lecbmere,  383, 


Manningford  v.  Toleman,  221. 
Manser  v.  Back,  411,  413,  418.  455. 
Manser's  Case,  396. 
March  v.  Lee,  324. 
Mare  v.  Malachv,  381. 

—  V.  Sandford,  214. 

—  V.  Warner,  214. 
Marjoribankst).  Ilovenden,  259,  260,261. 
Marker  v.  Marker,  132. 

Marsden's  Trust,  Jie,  268,  269,270,271, 

385. 
Marshall  v.  Collett,  397,  433. 

—  V.  Sladden,  366,  394. 

Martin  2).  Cotter,   18,   19,  243,  244,255, 
339,  300. 

—  V.  Martin,  228. 

—  V.  Mitchell,  357. 

—  V.  Morgan,  99. 

—  V.  Pycroft,  147,  364,  365,  418. 

—  V.  Sedgwick,  142. 
Martindale  i'. "Booth,  210,  211. 
Martinez  v.  Coojjcr,  141. 
ilarvin  v.  Bennett,  67. 
Mason  v.  Armitage,  412. 

—  V.  Crosby,  77,  78. 
Massey  v.  Davies,  172,  174. 
Masson  v.  Bovet,  337. 
Masters  v.  Ibberson,  331. 
Matthew  v.  Brise,  178,  306,  311. 
Matthie  v.  Edwards,  176. 

Maturin  u.  Tredenuick,  88, 175,  336,  337, 

340,  350. 
Maundrell  v.  Maundrell,  313. 
Maunsell  v.  Hedges,  89,  90,  93,  342. 
Maxwell  v.  Port  Tenant  Steam  Fuel  Co., 

172. 
May  *'.  Chapman,  330. 
ilayhew  v.  Fames,  259. 
Maynard  v.  Moscley,  407. 
Meadows   v.   Meadows,   410,  414,  436, 

454. 
Medbury  v.  Watson,  84,  85. 
^leddowcroft  v.  Huguenin,  294. 
Medwin  v.  Sandham,  410. 
Meilers  v.  Duke  of  Devonshire,  39Y. 
Mellish  V.  Mellish,  178,  449. 

—  V.  Motteux,  100. 
Mercer  v.  Peterson,  281,  283. 
Meredith  v.  Saunders,  186,  189, 
Mei-ewethcr  v.  Shaw,  GO,  69,  73. 
Mertins  v.  Jolliffe   241,  316. 
Mestaer  v.  Gillespie,  275,  444. 
Metcalfe,  Be.  193. 

—  V.  Pulvertnn,  230. 
Meux's  Executors"  Case,  115. 
Middlecombe  v.  Mailow,  203. 
Middleton  v.  Middlelon,  184,  195,  273. 

—        V.  Sherhurn,  184.  193. 
Midland  Great  Wc.-tern    Railway   Co., 

of  Ireland  v.  Jolmson,  397. 
Mildoiay  v.  Hungerford,  401. 


I 


u 


TABLE  OF  ENGLISH  CASES  CITED 


Miles  V.  Lansley,  247. 
Mill  V.  Hill,  265,  346,  347. 
Millar  v.  Craig,  298,  414,  436. 
Millard's  Case,  369. 
Mills  ),'.  Bowyers'  Society,  447,  448. 
Milner  v.  Milncr,  448,  449. 
Mince  v.  Peters,  379. 
Minshall  v.  Lloyd,  210. 
Mitchell  V.  Steward,  2.')2. 
Mix(r'3  Case,  48,  117.  336. 
Mocatta  V.  Murgatroj-d,  251. 
Moens  v.  Ileyworlh,  56,  72. 
Mogg  V.  Baker,  285. 
Molineux,  ex-parte,  161. 
Mold  V.  WLeatcroft,  251. 
Molony  v.   Kuruaii,    152,   173,  249,  318, 
370. 

—  V.  L'Estrange,  165,  297,  306. 
Molton  V.  Camroux,  145,  147. 
Monro  v.  Taylor,  419,  432. 
Montefiore  v.  Browne,  239,  242. 
Monteliori  v.  Montefiori,  342. 
Montesquieu  v.  Sandys,  165,   168,  170, 

366,  391. 
Moodie  v.  Reid,  440. 
Moor  V.  Bennett,  241. 
Moore  v.  Frowd,  156. 

—  V.  Jervis,  323. 

—  V.  Mayhow,  319,  370. 

—  V.  Moore,  402. 

~    V.  Prance,  165,  386,  387,  394. 

—  V.  Rycault,  203. 
Morecock  v.  Dickens,  264. 
Moreland  c.  Richardsnn,  247. 
Morgan,  ex-parle,  ]  62,  349. 

—  V.  Bruen,  392. 

—  V.  Evans,  100. 

—  V.  Higgins,  165. 

—  V.  Lewes,  166.  307. 

—  V.  Mather,  447. 
Morland,  ex-parte,  160. 
Morley  v.  Attenboroiigh,  105, 

—  V.  Clavcring,  244,  257. 

—  V.  Reniioldsori,  453. 
Morphett  v.  Jones,  135. 
Morrett  v.  Paske,  324. 
Morris  v.  Clarks<m,  216. 

—  V.  Livie,  322,  323. 

—  V.  arCulloch,  222. 

—  V.  Venables,  284. 
Morris  Canal  Co.  v.  Emmett,  67. 
Morse    v.    Royal,   157,    159,    187,    190, 

297. 
Mortimer  v.  Bell,  226. 

—  V.  Capper,  432. 

—  V.  Orcliurd,  456. 

—  V.  Shortall,  422,  423,  454,  455. 
Moss  V.  Baiiibrigge,  166,  168,  169. 
Mount  ford  v.  Scctt,  259. 

Mowatt  V.  Blake  382. 
Moxey  V.  Bigwood,  412,  455. 


Miickleston  v.  Brown,  279. 
Mugiieridge    v.    Kew    Jirunswick,  Ac, 

"Railway  Co.,  95,  96,  110. 
Mulhallen  v.  Marum,  173,  177,  179,  297, 

346,  347,  350,  390. 
Mulvany  v.  Dillon,  160. 
Mummery  v.  Paul,  326. 
Munday  v.  Kniglit,  366. 
Mundy  V.  JoUiffe,  135,  136. 
Murphy,  ex-parte,  287. 

—  V.  Abraham,  200,  207. 

—  V.  O'Shea,  173,  174,  347. 
Murray  v.  15arlee,  148. 

—  V.  Mann,  332,  383. 

—  V.  Palmer,  56,  186, 190,  297,  305, 

310,  312,  346,  347,  350. 

—  V.  Parker,  419,  455. 

—  V.  Pinkett,  323. 
Myers  v.  Watson,  357,  364,  390. 

Nagle  v.  Baylor,  147,  302. 

Nanney  v.  Williams.  171,  274. 

Nantes  v.  Corrock,  209. 

Nash  V.  Ash,  379. 

National    Assurance    Association,    Jie, 

239,  242. 
National  Exchange  Company  v.  Drew, 

78,   83,  93,  115,  116,  117,  118,  366, 

373. 
National  Life  Assurance  and  Investment 

Association,  Be,  254. 
Naylor  v.  Winch,  152,  398,   404,  434, 

454. 
Neale  v.  Day,  200. 

—  V.  Neale,  404,  434. 
Neap  V.  Abbott,  412,  435,  456. 
Neate  v.  Ball,  331. 

Nedby  v.  Nedby.  193. 

Neesom  v.  (Jlarkson,  240,  241,  257,  311, 

335,  346,  347. 
Nellis  V.  Clark,  374,  375. 
Nelson  v.  Duncombe,  145. 

—  1^.  Stocker,  75,  76,  79,  113 
Nelthorpe  v.   Holgate,    100,   244,    247, 

364. 
—       V.  Pennyman,  166,  349. 

Nesbitt  V.  Berrid'-e,  171,  368,  394. 

Neville  t;.  Wilkiirson,  216,  341. 

New  Brunswick,  <fec..  Railway  Co.  v. 
Conybeare.  74,  76,  77,  83,  92,  111, 
112,115,116,117,118,326,366,390. 

New  Brunswick,  tfec.  Railway  Co.  v. 
Muggeridge,  80,  95,  109,  359. 

Newburgh  v.  Newburgh,  452. 

Newhara  v.  May,  45. 

Newman  v.  Payne,  163,  166,  170,  344. 

NichoU  V.  Jones,  150. 

NichoUs  V.  Leeson,  402. 

—  V.  Kicholls,  184. 

—  V.  Pinner,  109. 

—  V.  Roe,  289,  2'JO. 


TABLE  OF  EliTGLISH  CASES  CITED. 


15 


Nichols  V.  Charlie,  290. 

—  V.  Hancock,  293. 

—  V.  Pinner,  385. 
Nicholson  v.  Hooper,  130,  132. 
Nicol  V.  Vaug-han,  1*76. 
NicoU  V.  Chambers,  6Y. 

Mcoll's  Case,  48,  74,  75,  93,  111,  115, 
116,  117,  118,  137,  317,  330. 

Niell  V.  Morley,  145. 

Niven  ?j.  Belknap,  127. 

Nixon  V.  Hamilton,  191,  259,  261,  266, 

Nock  V.  Newman,  413. 

Nokes  V.  Wharton,  164. 

Norcutt  V.  Dodd,  209 

Norfolk,  Duke  of,  v.  Worthy,  63.  82. 

North  British  Insurance  Co.  v.  Lloyd, 
122. 

Norton  v.  Relly,  193. 

Norway  v.  Kowe,  202. 

Nott  ?j.  Hill,  188,  189. 

Nottridge  v.  Prince,  193. 

Nunn  V.  Fabian,  129,  136. 

Oakes  v.  Turqnand,  48,  49,  94,  112, 116, 

307,  330,  336. 
O'Brien  v.  Lewis,  170. 
O'Fay  V.  Burke,  129,  133. 
Ogilvie  V.  Jeaffreson,  60,  51,   139,  260, 

261,  262,  312,  314,  315,  317,  345. 
Okill  V.  Wiiittaker,  433,  454. 
Oldham  v.  Hand,  170. 

—  V.  Litchfield,  275. 
Oldin  V.  Sambouru,  177. 
Oliver,  ex-paiic,  215. 
Olliver  v.  Court,  305,  306. 
Olivant  v.  Bayley,  107,  410. 
Olliver  «.  Kiiio;,  127,  130. 

O'Neil  V.  Hamil,  178,  298,  310,  311. 

Onions  v.  Tyrer,  453. 

Onslow  V.  (  orrie,  277. 

Oriental  Banking  Co.  v.  Coleman,  282. 

Ornies  ».  Beadel,  293,  299. 

Ormrod  v.  Huth,  57,  325. 

Orr«.  Union  Bank  of  Scotland,  139. 

Osborne  v.  Williams,  222,  288,  377. 

Osmond  v.  Fitzroy,  146,  194. 

Overton  v.  Hannister,  382. 

Ovey  V.  Leigh  ton,  370. 

Owen  V.  Ilo'man,  122,  123,  236,  237. 

Oxwick  V.  Brockett,  437. 

Oxwith  V.  Plummer,  247. 

Page  v.  Home,  193. 
Pain  V.  Coombs,  135. 
Paine  v.  Hall,  275,  279. 
■f'ainter  v.  Newby,  363,  365. 
Palmer  v.  Neavo,  215. 

—  V.  Wheeler,  241,  268,  377. 
Pares  v.  Pares,  384. 

Paikur  V.  Bloxam,  208,  310. 

—  V.  Carter,  229. 


Parker  v.  Clarke,  185,  321 

—  V.  Taswell,  412,  428,  454. 

—  V.  Whyte,  257,  317. 
Parkes  v.  White,  162. 
Parkinson  v.  Haubury,  158,  347. 

—  V,  Lee,  106. 
Parnell  v.  Tyler,  171. 
Parr  v.  Jewell,  383. 

—  V.  Lovegrove,  390,  392. 
Parsons  v.  Parsons,  449. 
Partridge  v.  Stevens,  404. 

—  V.  Usborne,  311. 
Pasley  v.  Freeman,  324,  325,  339. 
Patcli  V.  Ward,  353. 

Patent  File  Co.,  cx-parte  White,  352,  396. 
Paulson  V.  Wellington,  218. 
Paxton  V.  Popham,  388. 
Payne  v.  Compton,  320. 
—     V.  Hornby,  284. 
Peacock  v.  Evans,  344. 

—  V.  Kernot,  192. 
Pearson  v.  Benson,  165,  169. 
Peel  V. ,  184,  193. 

—  w.Loggon,  184. 
Peel's  Case,  3u7. 
Pelly  V.  Bascombe,  347. 
Pember  v.  Mather,  389. 
Pendlebury  v.  Walker,  215. 
Pennell  v.  Reynolds,  281,  282,  288. 
Pennington  v.  Beechej',  370. 
Penny  v.  Watts,  253. 

Perens  v.  Johnson,  160,  182. 
Perfect  v.  Lane,  81. 
Perkes,  ex-parte,  161. 
I'errins  v.  Marine  Insurance  Co.,  73. 
Perry  v.  Holl,  236,  254,  256,  260,  261, 
262. 

—  V.  Meddowcroft,  294. 

Perry  llcrrick  v.  Attwood,  137,  140, 141, 

227,  240,  251. 
Persse  v.  Persse,  434. 
Peter  v.  Russell,  140,  141. 
Peto  V.  Hammond,  249,  251,  Zll. 
Petre  v.  Espinasse,  199. 
Petts,  Be,  449. 

Peyton  v.  Bladwell,  216,  222. 
I'liilipps  V.  Duke  of  Bucks,  358. 

—  V.  ('liamberlaine,  448,  449. 

—  V.  Evans,  447. 

—  V.  Philipps,  321,  322,  369,  371. 
Philippson  v.  Lord  Egremont,  293. 
Philipson  v.  Kerrj^  429,  455. 
Philpotts  V.  Philpotts,  375. 

Phippen  v.  Sticknej^,  225. 
Pickard  v.  Sears,  54. 
Pickeriijg  v.  Dowson,  99. 

—  V.   Pickering,    125,    161,  404, 

434. 

—  V.  Lord  Stamford,  305. 
Pickett  V.  Loggon,   184,   190,  277,  345, 

347,  354. 


16 


TABLE  OF  ENGLISH  CASES  CITED. 


ricklos  V.  Pickles,  •'584.  385. 
Pickstock  V  Lyster,  212. 
Pidcock  V.  Bishop,  123. 
Piers  V.  Piers,  317. 
Piggott  V.  Peiirice,  2Y4,  445. 

—  V.  btratton,  86,  89,  126,  356. 
Pike  V.  Vigers,  75,  384. 

Pilling  V.  Arraitage,  133,  136.  389. 
Pillmure  v.  Hood,  98,  291,  327. 
Pim  V.  Insall,  214. 
Pince  V.  Beattie,  164. 
Pinkett  v.  Wright,  323. 
Pitcher  v.  Rigby,  167. 
Platanione  v.  Staple,  376. 
Piatt  V.  Bromage,  402. 
Pledge  V.  Buss,  393. 
Plenderleath  r.  Eraser,  166,  302. 
Plews  and  Middleton,  J^e,  291.  292. 
Plumb  V.  Flintt,  234,  237,  241. 
Podmore  v.  Gunning,  273,  354. 
Poillon  V.  jMartin,  171. 
Polhill  V.  Walter,  56,  94,  324. 
Poole  V.  Shergold,  .S61. 
Pooley  V.  Brown,  396. 

—  V.  Quilter,  161. 

Pope  V.  Garland,  80,  92,  243,  255,  256, 

361. 
Popham  V.  Brooke,  98,  192. 

—  V.  Exhain,  158. 
Portarlington,  Lord,  v.  Soulby,  S'TO. 
Portland,"Duke  of,  v.  Topham,  272. 
Portinan,  Lord,  i:  Mill   65,  361. 
Portmore,  Lord,  v.  Morris,  428,  456. 
Pott  V.  Todhunter,  200. 

Potts  )'.  Surr,  180,  182,  297,  306. 
Poulson  V.  Welliniiton,  218,  441. 
Powell  v.  Dillon.  244,  246. 

—  V.  Donbble,  63. 

—  V.  Lovegrove,  135. 

—  V.  Thomas,  1 29. 
Powis  V.  Andrews,  44. 

—  V.  Harding.  330. 
Powles  V.  Page,  262. 

Pratt  V.  Barker,  191,  192,  193. 
Prendergast  v.  Turton,  302,  306,  307. 
Prevost  I'.  Gratz,  160. 
Price  V.  Berrington,  145,  383. 

—  V.  Brice,  453. 

—  V.  Jones,  447. 

—  V.  Ley,  424,  455. 

—  V.  Macaulay,  62,    69,   74,   78,   19, 

358,  359,  361. 

—  V.  North,  62.  361,  363. 

—  V.  Price,  191,  193,  195. 

—  V.  Salu-btirg,  135. 
Priddy  v.  Rose,  322. 

Prideaux  r.  Lonsdale,  161,  182,190,  194, 

220,  392. 
Pridham  v.  Philipps,  294. 
Prince  of  Wales  Assurance  Co.  v.  Palmer. 

386. 


Pritchard  v.  Merchants'  Life  Assurance 

Society,  121,  43(.i. 
Pritt  V.  Clay,  431,  434. 
Froby  v.  Landor,  440. 
Procter  v.  Cooper,  257,  265,  267. 
Proc-tor  >:  Robinson,  163,  193,  306,  380. 
Prole  V.  Soady,  89,  342. 
Proofs.  Hines,  166,  190,  344. 
Prosser  v.  Rice,  235,  313. 
Proudfoot  V.  Montefiore,  120. 
Pryor  v.  Prvor,  270. 
Pugh,  He,  166. 
Pulsford  V.  Richards,  62,  63,  69,  73,  94, 

333,  339,  3411,  361,  390. 
Pulvertoft  V.  Pulvertoft,  227,  230,  235. 
Purcell  V.  KellT,  312. 

—     V.  Macnamara,  1 71,  297,  306,  344, 
Purdie  v.  Millett,  191. 
Purse  V.  Snaplin,  449. 
Pusey  V.  Desbouverie,  95,  298,  398,  401. 

Queen  v.  Saddler's  Co.  93,  329. 

Radcuffe  v.  Warrington,  357. 
RafHes  v.  Wicklehaus,  435. 
Railton  v.  Matthews,  96. 
Ramsbottom  v.  Gosden,  418. 

—  V.  Parker,  165,  184,  191. 

Ramsden  v.  Dvson,  117,  129,  131,  136. 

—  i;.  Hylton,  203, -JOl. 
RanclifFe  v.  Parkins,  251,  304. 
Randall  v.  Eriington,  157,  158,  300,  349. 

—  V.  JMorgan,  202,  203. 

—  V.  Willis,  217. 

Ranger  v  Great  Western  Railway  Co., 

115. 
Ranking  v.  Barnes,  270,  271,  272. 
Kapp  V.  Latham,  114,  115. 
Rashdall  v.  Ford,  90. 
Raw  V.  Pole,  130. 
Rawlins  v.  Wickham,  48,  54,  69,  75,  78, 

80,  81,  258,  334,  357,  359,  379,  393. 
Raworth  v.  Marriott,  171. 
Rawstone  v.  Parr,  426,  427. 
Rayne  v.  Baker,  141,  318. 
Read  V.  Prest,  381. 
Reade  v.  Armstrong,  419. 

—     V.  Livingstone,  205,  206. 
Redman  «.  Redman,  216. 
Reech  v.  Kennigate,  275. 
Reed  v.  Norris,  175,  182. 
Reese  River  Silver  Mining  Co.  JRe  Smith's 

Case,  74,  79. 
Reid  V.  Reid,  268,  269. 

—  V.  Shergold,  442. 

Rfeis  V.  Equitable  Assurance  Co.,  121. 
liemfrey  v.  Butler,  108. 
llcniiie  V.  Young,  133. 
Kevett  V.  Harvey,  178,  179. 
Rex  V.  Hurdett,  385. 

—  V.  Duchess  of  Kingston,  294. 


TABLE  OF  ENGLISH  CASES  CITED. 


17 


Reynard  v.  Spence,  453. 

Reynell  v.  Sprve,  44,  51,  6*7,  78,  19,  81, 

114,  377,  382,  388,  398,  404. 
Reynolds,  ex-jxirte,  161,  349. 
Rhodes  v.  Bate,  123,  152,  153,  165,  175, 
178,  182,  183,  184,  190. 

—  V.  Beauvoir,  163,  166,  176. 

—  V.  Cooke,  180,  182,  254. 
Rice  V.  Gordon,  187. 

—  V.  liice,  141,  142,  234,  321,  322. 
Richards  v.  Curlewis,  185,  191. 
Richardson  v.  Goss,  331. 

—  V.  Horton,  214. 

—  V.  Small  wood,  208. 
Riches  v.  Evans,  213. 
Richmond  v.  Ta3!eur,  44. 
Rider  v.  Kidder,  209. 
Ridgway  v.  Gray,  65. 

—  V.  Newstead,  306. 

—  V.  Sneyd,  432,  453. 
Ridley  v.  Ridley,  158. 
Ringo  ('.  Binns,  175, 
Rishton  v.  Cobb,  450. 
Ritchie  v.  Couper,  172. 
River's  Case,  449. 
Roberts  v.  Croft,  236. 

—  V.  Roberts,  376. 

—  V.  Tuiistall,  297,  301,  305,  306, 

307,  311. 

—  V.  Williams,  229,  377. 
Robertson  v.  Norris,  162. 
Robinson  v.  Briggs,  249,  260,  317. 

—  V.  Dickenson,  430. 

—  V.  Musgrove,  63. 

—  V.  Pett,  130,  151,  156. 

—  V.  Lord  Vernon,  44,  389. 

—  V.  Wall,  226. 

Robson  V.  Earl  of  Devon,  46,  73,  74,  81, 
366,  382. 

—  V.  Flight,  317. 
Rochard  v.  Fulton,  266. 

Roche  V.   O'Brien,   221,   297,   301,  311, 

434. 
Roddy  V.  Williams,  95,  241,  258,  260, 

2'61,  394,  395. 
Rodgers  v.  Marshall,  443,  445,  446. 
Roe  V.  Galliers,  286. 
Rogers  v.  Bruce,  182. 

—  V.  Hadlej-,  44,  389. 

Rolfe  V.  Gregory,  52.  152,  307,  309,  352. 

Rolleston  v.  Morton,  317. 

Ronayne's  Estate,  lie,  102. 

Rooke  V.  Lord  Kensington,  421,  422. 

Rooperv.  Ilarriaon,  130,  142,  320,  321, 

324. 
Rorke's  Estate,  Re,  260,  261,  262,  266. 
Ross  V.  Estates  Invc^stment  Co.,  68,  83, 

88,  92,  94,351. 
—    V.  Steele,  178. 

Rothschild  v.  Brnckman,  172,  174,  349. 
Routledge  v.  Dorrill,  270. 


Rowley  v.  Rowley,  268,  273. 
Roy  V.  Duke  of  Beaufort,  184,  185. 
Ru'shout  V.  Turner,  138,  139. 
Russell  V.  Hammond,  199,  207.    ' 

—  V.  Jackson,  51,  275,  279,  386. 

Sadler  v.  Jackson,  215. 

—  V.  Lee,  381. 
Salkeld  v.  Vernon,  298,  310. 
Salmon  v.  Cutts,  297,  301,  391. 
Salte  V.  Field,  331. 

Saltern  v.  Melhuish,  275. 
Saltmarshe  v.  Barrett,  402. 
Sanderson  v.  Walker,  158,  159. 
Sandford  v.  Handy,  88,  258. 
Sandford  v.  Raikes,  452. 
Saunders  v.  Dehew,  234,  313. 
Saunderson  v.  Marr,  148. 
Savage  v.  Carroll,  136. 

—  V.  Foster,  130,  148. 

—  V.  Murphy,  2ii8. 

—  V.  Taylor,  345. 

Savery  v.  King,  165,  180,  182,  297,  300, 

310,  335. 
Sawyer  v.  Goodwin,  379. 

—  V.  Vernon,  42. 

Saxon  Life  Assurance  Co.,  Re,  400,  436. 

Say  V.  Barwick,  147,  297. 

Sayer  v.  Sayer,  438,  441,  446. 

Schloss  V.  Stiebel,  45u. 

Schneider  v.  Pleatli,  102. 

Scholefield  v.  Templar,  48,  51,  64,  336, 

400,  436. 
Scholfield  V.  Loclcwood,  419. 
Scott  V.  Dixon,  374. 

—  V.  Dunbar,  175. 

—  V.  Hanson,  83,  84,  8(i,  361. 

—  V.  Scott,  125,  184,  185,  216,  434. 
Scroggs  V.  Scroggs,  277. 

Seaman  v.  Vawdrey,  103. 

Seddon  v.  Conneli,  340,  380,  381. 

Segrave  v.  Kirwan,  171,  274,  354 

Selby  V.  Jackson,  145. 

Sellack  v.  Harris,  275. 

Sells  j;.  Sells,  421,  422. 

Selsey,  Lord,  v.  Rhoades,  173,  302. 

Selway  v.  Fo^g,  328. 

Selwuod  V.  Mildmay,  450,  452. 

Sepalino  v.  Twitty,  276. 

Scrcombe  v.  Saunders,  193,  254. 

Serle,  ix-parte,  101. 

Seward  v.  Jackson,  204,  206. 

Seymour  v.  Lucas,  286. 

Sliackleton  v.  Sutclilfe,  63,  79,  95,  33tf, 

363,  393. 
Shand  v.  Grant,  414. 
Shannon  v.  Bradstreet,    303,   438,  441, 

443. 
Sharp  V.  Arbuthtiot,  248. 

—  V.  Cosseratt,  287. 

—  V.  Leach,  193,  301,  350,  387 


18 


TABLE  OF  ENGLISH  CASES  CUED. 


Sharp  V.  Taylor,  379. 
Sharpless  v.  Adams,  313,  315. 
Shaw  V.  Bunny,  lt)2. 

—  V.  Jeffery,  53.  200. 

—  V.  Nealo,  lie,  267. 

—  V.  Thackeray,  147. 
Sheard  v,  Venables,  81,  S60. 
Shearman  v.  Macgregor,  413. 
Sliedden  v.  Patrick,  293,  294. 
Sheldon  v.  Cox,  235.  241,  250. 
Shepherd  v.  Pybus,  107. 

—  V.  Sharpe,  100. 
Sherwin  v.  Shakespeare,  348. 
Sherwood  v.  Robbing,  64. 
Shillibeer  v.  Jarvis,  136. 
Ship's  Case,  64. 

Shirley  v.  Davis,  404. 

—     V.  Stratton,  363. 
Shrewsbury    &    Eiiniing-ham    Railway 

Co.     V.    North    AVestern     Railway 

Co.,  411. 
Shrubsole  v.  Sussams,  281,  284. 
Sibbald  v.  Hill,  93. 

Sibbering  v.  Earl  of  Balcarres,  304,  305. 
Sibson  V.  Edgeworth,  366. 
Sidny  v.  Ranger,  166,  349. 
Siebert  V.  Spooner,  281. 
Sillem  V.  Thornton,  72,  121. 
Simpson  v.  Lord  Howden,  296. 

—  V.  Vaughan,  425. 
Sims  V.  Marry att,  105. 
Sismey  v.  Eley,  378. 
Skarff  V.  Soulby,  204. 
Skillbeck  v.  Hilton,  298. 
Skinner,  ex-parte,  163. 

Skottowe  V.  Williams,  299,  304,  312. 

Slater's  Case,  278. 

Sieech's  Case,  425. 

Slim  V.  Croucher,  46,  47,  54,   69,   833, 

342,  345,  35  ),  390. 
Sluysken  v.  Hunter,  276. 
Small  V.  Attwood,  73,  74,  302,  351,  366, 
373. 

—  V.  Currie,  122. 
Smallman's  Estate,  Re,  260. 
Smedley  v.  Varley,  161. 
Smith  V.  AshtoM,  443. 

—  V.  Eakes,  307. 

—  V.  Bank  of   Scotland,   100,   122, 

123. 

—  V.  Bromley,  377. 

—  V.  Bruiiing,  221. 

—  V.  Cannan,  212,  281,  283. 

—  V.  Caproii,  242. 

—  V.  Ch.rii.l,  204,  205,  232 

—  V.  Clarke,  226. 

—  V.  Clay,  3n3,  304. 

—  V.  Countryman,  87. 

—  V.  Evans,  138. 

—  V.  Garland,  230. 

—  V.  Harrison.  81,  101. 


Smith  V.  Hurst,  213. 

—  V.  Jeffreys,  435. 

—  V.  Kay,  74,  75,  93,  94,   152,  182, 

183,  190,  193,  297,  382. 

—  V.  Maitland,  449. 

—  V.  Marrable,   104. 

—  V.  Parkes,  322. 

—  V.  Pawson,  384. 

—  V.  Pincombe,  125. 

—  V.  Reese  River  Silver  Mining  Co., 
47,  80,  81,  251,  255,  307,  309,  372. 

—  V.  Timms,  281,  283. 

—  V.  Underdouck,  135. 

—  V.  Whitmore,  289,  290,  293. 
Smith's  Case,  68,  79,  110. 
Smithson  v.  Powell,  65. 

Smout  V.  llbery,  55. 

Smyth  V.  Griffin,  377. 

Snell  V.  Jones,  225. 

Snook  V.  Watts,  145. 

Sober  v.  Kemp,  335. 

Solomon  v.  Honywood,  102,  112. 

Somersetshire  Canal    Co.  v,    Harcourt, 

126,  130. 
South  Sea  Co.  v.  Bumpstead,  44,  291. 
Spackman's  Case,  43,  263,  298, 300,  301, 

311. 
Spackman  v.  Timbrell,  214. 
Spaight  V.   Cowne,   123,  138,  139,  259, 

260,  261,  317. 
Spencer  v.  Topham,  165. 
Spettigue  v.  Carpenter,  292. 
Spirett  V.  Willows,  204,  207. 
Spittal  V.  Smith,  182. 
Spring  V.  Pride,  159. 
Spunner  v.  Walsh,  92,  243,  244. 
Spurgeon  v.  Collier,  202, 
Squire  v.  Campbell,  418. 

—  V.  Whitton,  123. 

St.  Albyn  V.  Harding,  381,  393. 

St.  Aubyn  v.  Smart,  47,  350. 

St.  George  v.  Wake,  219. 

St.  John  V.  St.  John,  378. 

Stacey  v.  Elph,  162. 

Stackhouse  v.  Countess  of  Jersey,  142, 

321,  322,  323. 
Stafford  V.  Staff"ord,  402. 
Stainbank  v.  Fernley,  47,  340,  369,  381. 
Staines  v.  Morris,  391. 
Stainton  v.  Carron  Co.,  166,  434. 
Stamford,  Earl  of,  v.  Bawson,  350,  395. 
Standen  v.  Standen,  450. 
Stanes  v.  Parker,  164,  298. 
Stanger  v.  Wilkins,  281,  283. 
Stanhope's  Case,  263,  300,  311. 
Stanilaud  v.  Willott,  393. 
Stanley  v.  Bond,  393. 
Stanton  v.  Tattersall,  62,  63,  92,  392. 
Stapilton  v.  Scott,  409,  411,  430. 

—         V.  Stapilton,  404. 
Steadman  v.  Poole,  241,  249,  253. 


TABLE  OF   BXGLISn  CASES  CITED. 


19 


Steadman  v.  Palling,  1Y8,  298. 
Stebbing  v.  Walkey,  449. 
Stebbins  v.  Eddy,  07. 
Stedman  v.  CoUett,  166. 

—  V.  Hart,  145. 
Steed  V.  Calley,  146. 

—  V.  Whittaker,  259. 
Steel  V.  Baylis,  43. 
Steevens'  Hospital  v.  Dyas,  135. 
Steff  V.  Andrews,  447. 
Stephens  v.  Medina,  104. 

—  V.  Ollive,  207. 

—  V.  Venables,  341,  342. 
Stephenson  v.  Royse,  239,  254. 

—  V.  Wilson,  407. 

Stepney  v.  Biddulph,  346,  347,  350. 
Stevens  v.  Lynch,  396,  402. 

—  V.  Praed,  407. 

—  V.  Stevens,  141. 

Stewart  v.   Alliston,  62,   81,   359,  360, 
361,  362,  363. 

—  V.  Great  Western  Railway  Co., 
45,  46,  47,  367. 

—  V.  Stewart,  125,  404,  434. 
Stewart's  Case,  64,   255,  256,   262,  263, 

300,  301,  305. 
Stickland  v.  Aldridge,  275. 
Stikeman  v.  Dawson,  95,  148,  382,  884, 

385. 
Stileman  v.  Ashdown,  207,  208. 
Stillwell  V.  Wilkins,  187. 
Stocker  v.  Stocker,  217. 
Stockley  v.  Stockley,  434, 
Stokes  V.  Cox,  72,  121. 
Stokesley     Union,     Guardians     of,     v. 

Strother,  123. 
Stokoe  V.  Cowan,  209. 
Stone  V.  Denny,  54. 
—   V.   Godfrey,  302,  398,    399,   408, 
436,  455. 
Story  V.  Lord  Windsor,  318,  319. 
Strachan  v.  Barton,  285. 
Straker  v.  Ewing,  390. 
Strange  v.  Brennan,  164. 
Strangways  v.  Bishop,  1 8,  243. 
Stratford  v.  Bosworth,  455. 

—  V.  Twynam,  160. 
Stratford  and   JNloreton  Railway  Co.  v. 

Stratton,  388. 
Strathmore,  Lady,  v.  Bowes,  217,  218. 
Stray  v.  Russell,  108. 
Street  v.  Blay,  331,  332. 
Stribblehill  v.  Brett,  222. 
Strickland  v.  Turner,  406,  430. 
Strong  V.  Stroni;,  199. 
Stroughill  V.  Anstey,  249. 
Stuckley  v.  Bailey,  70. 
Stump  V.  Gaby,  48,  207,  298. 
Sturge   V.   Stiirge,   190,    193,  398,  401, 

454. 
Sturgis  V.  Morse,  309. 


Summers  v.  Griffiths,  187.  190. 

Sumner  v.  Powell,  427. 

Surcombe  v.  Pinniger,  135. 

Surman  v.  Barlow,  241. 

Surplice  v.  Farnswortli,  104. 

Sutherland  v.  Briggs,  136. 

Sutton  V.  Temple,  104. 

Swaine  v.  Great  Northern  Railway  Co., 

134. 
Swaisland  v.  Dearsley,  360,  412,  413. 
Swan  V.  North  British  Australasian  Co., 

54,  69,  136,  137. 
Sweet  V.  Southcote,  316. 

Taite's  Case,  307. 
Talbot  V.  Staniforth,  187. 
Talleyrand  v.  Boulanger,  1 84. 
Tanner  v.  Elworthy,  152,  182. 

—  V.  Florence,  241. 
Tapp  V.  Lee,  94. 
Tarback  v.  Marbury,  207. 
Tarleton  v.  Liddell,  198,  354,  372. 
Tate  V.   Williamson,   87,  151,  152,  153, 

171,  182,  190,  193. 

Tatbam  v.  Vernon,  415. 

Tayler  v.  Great  Indian  Peninsular  Kail- 
way  Co.,  137,138. 

Taylor,  ex-parte,  148. 

—  v.  Ashwortli,  54,  55. 

—  V.  Baker,  241,  252. 

—  V.  Bullen,  70,  99. 

—  V.  Chichester,   <tc.  Railway  CCi 

296. 
~     V.  Hughes,  278. 

—  ».  Jones,  199. 

—  V.  Martindale,  62,  92. 

—  V.  Obee,  183. 

—  V.  Pugh,  217,  218,  219. 

—  V.  Richardson,  452. 

—  V.  Salmon,  175,  373. 

—  V.  Shum,  277. 

—  V.  Stibbert,  234,  241,  244. 

—  V.  btile,  227. 
Teasdale  v.  Teasdale,  130,  137. 
Teed  v.  Beere,  309. 

Teede  v.  Johnson,  396. 

Terry  v.  Wacher,  193. 

Thacker  v.  I'hinney,  206. 

Theyer  v.  Tombs,  393. 

Thorn  V.  Big'and,  54,  55,  57,  325. 

Thomas  v.  Frazer,  425. 

—  V.  Powell,  343,  407. 
Thompson  v.  Barclay,  47,  369. 

—  V.  Caitwright,  261. 

—  V.  Harrison,  381. 

—  V.  lleilornan,  193. 

—  V.  Simpson,  130. 

—  V.  Smith,  444. 

—  V.  Tomkins,  142. 

—  V.    Webster,   199,    205,   206, 
207,  208. 


20 


TABLE  OF  ENGLISH  CASES  CITED, 


Thornber  v.  Sheard,  180,  254,  298. 

Thorndike  v.  Hunt,  313,  323. 

Tbornett  v.  Haines,  225. 

Thornhill  v.  Evans,  184. 

Thorpe  v.  Jackson,  425, 

Thynn  v.  Tliynn,  354. 

Tildesley  v.  Lodge,  239,  251,  319. 

Todd  V.  Wilson,  164. 

Toft  V.  Stephenson,  308. 

Toker  v.  Toker,  189,  193,  387,  391, 

Toilet  V.  Toilet,  440,  442,  445. 

Tomlison    v.  Leigh,  423. 

Tommey  I'.  'WhiLe,  298. 

Tomson  v.  Judge,  125,  1*70. 

Topham  v.  Lul^e  of  Portland,  51,  269, 

272. 
Toulmin  v.  Steere,  258,  2G0,  2C2,  317, 

324. 
Tourville  v.  Naish,  319,  370. 
To  wart  v.  Sellers,  143. 
Towne,  ex-parte,  161. 
Townend  v.  Toker,  200,  231,  232. 
Townsend  v.  Cliampernowne,  390,  391. 

—  V.  Crowdy,  414. 

—  V.  Lowfield,  384. 

—  V.  Westacott,  395. 
TowEshend,  Lord,   v.   Stangroom,   421, 

428,  429,  456. 
Traill  v.  Baring,  45,  67,  75,  355,  383. 
Trenehard  v.  W  anlev,  45,  384. 
Trevelyan  v.  Charter,  173,  174,  346,  350. 

—  v.  AVhite,  346. 

Trigge  v.  Lavalee,   125,  404,  407,  408, 

434. 
Trower  v.  Xewecme,  82,  83. 
Tucker  v.  I'hipps,  275. 
Tulk  V.  Moxhay,  2.j5. 
Turner  v.  liarvev,  97. 

—      V.  Hill,  3*81. 
Turquand  v.  Knight.  380,  395, 
Turton  v.  Benson,  216,  ;^22. 
Tweddell  v.  Twedddl,  ISO. 
Tweedale  v.  Tweedale,  260. 
Twining  v.  Morice,  362. 
Twyford  v.  "Warcup,  67, 
Twyne's  Case,  199,  200. 
Tvlee  V.  Webh,  251. 

Tyrrell  v.   Limk  of  London,   163,   166, 
172,  174,  175,  346. 

Udell  v.  Athcrton,  97,  111,  112. 
Ulrich  V.  Litcl'.lield,  448,  4.J3. 
Underbill  v.  llorwood,  184,  187,  425. 
Underwood  v.  Lord  Courtown,  303. 
United  States,  Bank  of,  v.  Havies,  262, 
263. 

—  —  V.  Houseman,  206. 

—  V.  T'lice,  426. 
Unity  Bank,  ex-pm-le,  148. 
Uppington  v.  BuUen,  165,  166,  167,  191, 

192,  37L 


Upton  V.  Vanner,  130, 
Urmston  v.  I'ate,  407. 

Mas  v.  Corpe,  80,  92,  244,  255. 
Vancouver  v.  Bliss,  390,  391,  392. 
Vandeleur  v.  Blagrave,  137,  138,  139. 
Vane  v.  Cobbold,  95. 

—  V.  Fletcher,  274. 

Van  Epps  v.  Harrison,  84,  86,  88, 
—        V.  Van  Epps,  151,  160. 

Vaughan  v.  Vanderstegen,  149. 

Vaugbton  v.  Koble,  154. 

Vauxball  Bridge  Co.  v.   Spencer,   221, 
341. 

Venezuela,  Central  Railway  Co.  of,  v, 
Kisch, 

Vernede  v.  Weber,  70. 

Vernon  1).  Keys,  78,  82,  87,  88. 

—  V.  Vernon,  441. 
Vickers  v.  Bell,  193. 

Vigers  v.  Pike,  76,  79,  302,  357. 
Vignolles  v.  Bowen,  63,  255. 
Villiers  v.  Villiers,  384. 
Vine  V.  .Mitchell,  102. 
A^ivers  v.  Tuck,  359. 
Vorley  v.  Cooke,  49,  312. 
Vyvyan  v.  Vyvyan,  301. 

"Wade  v.  Paget,  442. 
"WagstafT  v.  Read,  369, 
Wake  V.  Ilarrop,  418,  428. 

—  V.  Wake,  453. 
Wakefield  v.  Gibbon,  200. 
Waldron  v.  Sloper,  138,  141. 
Wallord  v.  Adie,  262,  263,  303,  306,  307 
Walker  v.  Armstrong,  420. 

—  V.  Burrows,  208. 

—  V.  Smith,  170,  171,  386. 

—  V.  Symonds,  91,  124,   125,  180, 

297,  303,  384. 
Wall  V.  Cockerell,  138, 139,  297,  301,  302. 

—  V.  Stubbs,  84,  363. 
Wallace  v.  Wallace,  182. 
Walli^rave  v.  Tebbs,  279. 
Wailisi'.  Harrison,  113. 

—  V.  Duke  of  Portland,  195. 
Wallwvnn  v.  Lee,  315,  320 
Walmsley  v.  Booth,  163,  166,  303. 
Walsh  V.  Studdert,  170. 

Walsham  v.   Stainton,  47,  51,  172,  309, 

308,  371,  379,  380. 
Walters  v.  Mauiide,  242. 

—      V.  Morgan,   97,    100,   358,   365, 
392. 
Waltham  v.  Broughton,  43. 
Ward  V.  Booth,  274. 

—  V.  Hartpule,  166,    170,   346,    372, 

392. 

—  V.  Lant,  376. 

—  V.  bhallett,  203. 

—  V.  Tratheu,  343. 


TABLE  OF  EI^GLISH  CASES  CITED. 


21 


Warde  v.  Diclcson,  180,  269 

Warden  v.  Jones,  41,  136,  202,  203. 

"Wardour  v.  Berisford,  275. 

"Ware  v.  Egmoiit,  238,  239,  240,  250,  254. 

"Warinn'  v.  Waring,  146. 

Warner  v.  Daniels.  78,  100,  408. 

Warrick  v.  ^^  arrick  259,  436. 

Warrin  v,  Tliomas,  393. 

W^ason  V.  Waring,  252. 

Waters  v.  Bailey,  152,  182. 

—  V.  Groom,  100. 

—  V.  Tborn,  161,  297,  298,  390. 
Watson  V.  Toone,  161. 

—  V.  Marston,  357,  398,  411,  412. 
Watt  V.  Grove,  164,  173,  191,  192,  344, 

352,  386. 
Watts  v.  Brooks,  379. 

—  V.  Cresswell,  148. 
Way  V.  Hearne,  93. 
Webb  V.  Brookes  402. 

—  V.  Byng,  452. 

—  V.  Eorke,  42,  194. 
Webster  v.  Cecil,  412,  455. 
Webster's  Case,  256. 

Wedderburn  v.  Wedderburn,   161,  297, 

298,  308. 
Welchman  v.  Coventry  Union  Bank,  240. 
Welles  V.  Middleton,  170. 
Wellesley  v.  Lord  Mornington,  268. 
Wensley,  ex-parte,  281,  283,  285. 
Wentworth  v.  Lloyd,  165,  174,  306. 
West  V.  De  Wezele,  435. 

—  V.  Jones,  54,  137,  138. 

—  V.  Rav,  274. 

—  V.  Reid,    238,  239,  240,  241,  254, 

257. 
Westby  v.  Westby,  434,  454. 
Western  Bank  of  Scotland  v.  Addie,  48, 

54,  93,  111,  112,  113,  116,  326,  330, 

335,  336,  337. 
Wethered  v.  Wetliered,  222,  224. 
Whalley  V.  Whallev,  52,  189,  192,  193, 

302,  304,  305,^310,  312. 
Wharton  v.  May,  344. 
Wheeler  v.  Caryl,  203. 
Wheelton  v.  Hardisty,  72,  74,  93,  111, 

116,  121. 
Whelan  v.  Whelan,  194. 
Wliiclicote  V.  Lawrence,  158. 
Whitbread  v.  Jordan,  239,  266. 
Whitcombe,  He,  104. 
White  V.  Bradshaw,  63,  359. 

—  V.  Cuddon,  83. 

—  V.  Damon,  357. 

—  V.  Garden,  48,  329. 

—  V.  Hall,  44. 

—  V.  Small,  146. 

—  V.  Wakefield,  129,  247. 

—  V.  Wakley,  135. 
WhitcliousL'a  Case,  307. 
Whitlield  v.  Faussett,  239. 


Whitmore  v.  Claridge,  283. 

—  V.  JIaekeson,  48,  339,  343. 

—  V.  Mason,  286. 
Whitney  v.  Allaire,  330. 
Whittiugton  v.  Jennings,  208. 
Whitworth  v.  Gau-aiu,  318,  389. 
Whvte  V.  Meade,  193. 

WMckes  V.  Cooke,  206. 

Wickham  v.  Wickham,  115. 

Wigg  V.  Wigg,-  320. 

Wilbur  V.  Howe,  224. 

Wild  V.  Hillas,  407. 

Wilde  V.  Gibson,  56,  92,  97,   112,  114, 

259,  260,  357,  366. 
Wilkie  II.  Holmes,  442. 
Wilkinson  v.  Brayfield,  277. 

—  V.  Fowkes,  335,  344,  350,  351, 

371. 

—  V.  Joughin,  354. 

—  V.  Nelson,  423,  428. 

—  V.  Stafford,  185. 
Wilkinson's  Case,  263. 

Willan  V.  Willan,  190, 191, 192, 193,  357, 

406. 
Willats  V.  Busby,  230. 
AVilliams  v.  Bayley,  143,  183,  184,  194. 

—  V.  Lambe,  320. 

—  V.  Livesej-,  246. 

—  V.  Llewellin,  366. 

—  V.  Piggott,  167. 

—  V.  Smith,  190,  298,  367,  372. 

—  V.  Wentworth,  145. 

—  t).  Williams,  181,434. 
Williamson  v.  Brown,  236. 

—  V.  Gihon,  221,  345. 

—  V.  Henderson,  425. 

—  V.  Seaber,  349. 
Willis  V.  Willis,  96. 

Willoughby  v.  Willoughby,  313, 314,  320. 
Wills  V.  Stradling,  130. 
Wilson  1'.  Puller,  111. 

—  V.  Hart,  238,  252,  257. 

—  V.  Piggott,  441. 

—  V.  Short,  46,  79,  80, 174,  254, 344. 

—  V.  Sinclair,  403. 

—  V.  West  Hartepool  Railway  Co., 

135. 

—  V.Wilson,  417,  418. 
Wiltshire  v.  Marshall,  147. 

—  V.  Rabbits,  142. 
Winch  V.  Winchester,  65,  361,  364. 
Windsor,  Dean  and  Chapter  of,  v.  Pen- 

vin,  288. 

Winter  v.  Brockwell,  134, 

AVintour  v.  Clifton,  453. 

Wolfe  V.Frost,  135. 

Wallaston's  Case,  116. 

Wolverhampton  and  Staffordshire  Bant- 
ing Co.  V.  Marston,  212. 

Wood  V.  Abrey,  186,  187,  190,  194,  392. 

—  V.  Barker,  215. 


TABLE  OF  ElifGLISH  CASES  CITED. 


Wood  «.  Dixie,  212. 

—  V.    Do^nes,   125,    163,    168,    170, 

297. 

—  V.  Dwarris,  121. 

—  V.  Gviftith,  447. 

—  V.  ScartI),  411,  412,  413,  455. 
Woodlianis  v.  Anglo-Australian,  <fec.  Co., 

278,  323. 
Woodhousev.  Meredith,  158,  173,  174. 

—  V.  Murray,  280,  281. 

—  V.  Shcpley,  223. 
Woodward  v.  Miller,  225. 
Woollam  V.  Hearn,  418,  456. 
Worcester  Corn  Exchange  Co.,  Ee,  262. 
Wormald  v.  Maitland,  235,  250,  266. 
Worrall  v.  Jacob,  429. 

Worsley  v.  De  Mattes,  199,  201,  220, 
280. 
_        f.  Frank,  401,413,  414. 

—  V.  Lord  Scarborough,  259. 
Worthington  v.  Morixan,  141,  251. 
Worth's  Case,  116,  339,  340. 
Wortley  v.  Eirkhead,  324. 
Wright,  ex-pnrte,  421. 

—  V.  Crookes,  388. 

—  V.  Goff,  423. 

—  V.  Howard,  393. 

—  V.  Proud,  161,  IVO,  192. 

—  V,  Snowe,  148. 


Wright  V.  Vanderplank,  179,  301,   305, 

306,311,  391. 
Wrigley  v.  Swainson,  220. 
Wrought  V.  Davies,  138. 
Wyatt  V.  Barwell,  266. 
Wycherley  v.  Wycherley,  195. 
Wycombe   Railway  Co.  v.   Donnington 

Hospital,  412. 
Wyld,  ex-partc,  293. 
Wyllie  V.  Pollen,  259,  261. 
Wyse  V.  Lambert,   152,  171,   176,   183, 

195. 
Wythes  v.  Labouchere,  122,  260. 

Yeomans  v.  Williams,  89,  126,  341. 
York  and  North  Midland  Railway  Co.  v. 

Hudson,  161. 
York    Buildings  Co.    v.  M'Kenzie,  158, 

160, 172,  173,  174,  175,  346,  347. 
Young  V.  Fletcher,  212,  281,  283. 

—  "v.  Grote,  139. 

—  V.  Guy,  138. 

—  V.  Peachey,  179,  278,  277. 

—  V.  Walter,  447. 

—  V.  Waud,  280,  283, 

—  V.  White,  138. 

ZuLtJETA  V.  Tyrie,  180. 


TABLE  OF  AMERICAN  CASES  CITED. 


Abbey  v.  Dewey,  94. 
Abbott  V.  Allen,  104,  334. 

—      V.  Goodwin,  213. 
Abel  V.  Cave,  332,  335. 
Abney  v.  Kinj^sland,  211. 
Adams  v.  Soule,  83. 
Addington  v.  Ethorid^e,  213. 
AgTicultural  Bank  v.  Dorsey,  313. 
Aiken  v.  Bruen,  228. 
Aills  V.  Graham,  132. 
Aldridge  v.  Weems,  419. 
Alexander  v.  Kerr,  134. 

—  V.  Newton,  418. 

—  V.  Pendleton,  316. 

—  V.  Ultez,  299. 
Allen  V.  Addington,  326. 

—  V.  Hammond,  416. 

—  V.  Ilopson,  44,  104,  355. 

—  V.  Kanney,  292. 

—  V.  Sunders,  234. 

—  V.  Wanumaker,  325. 

—  V.  Winston,  131. 
Allison  V.  Mattiiieu,  108. 
Alston  V.  Outerbridge,  103. 
Amos  V.  Blunt,  212, 
Anderson  v.  Bennett,  '75,  19. 

—  V.  Bradford,  198. 

—  V.  Green,  227,  228,  229. 

—  V.  Hall,  84. 

—  V.  Hill,  329. 

—  V.  Johnson,  328. 
Andrews  v.  Brooks,  211. 
Appleton  V.  Ilorton,  339. 
Armstrong  v.  Campbell,  157. 

—  V.  Gushing,  328. 

—  V.  Tufts,  328. 

—  V.  Tuttle,  213. 
Arman  v.  Stout,  144. 
Arnett  v.  Wanett,  206. 
Arthur  v.  Arthur,  397. 
Ash  V.  Savage,  210. 
Ashbrook  v.  Wutkins,  415. 
Ashmead  v.  Ilean,  199. 
Ashunt  w.  Jlartin,  212. 
Ask  V.  Putnam,  108. 


Astor  V.  "Wells,  202. 
Atkinson  v.  Jordan,  212. 
Atwood  V.  Wright,  325. 
Austin  V.  Clark,  212. 
Austin  V.  Winston,  377. 
Averill  v.  Guthrie,  323. 
Aylett  V.  King,  306. 
Ayres  v.  Mitciiell,  299,  334,  SM. 

—  V.  Moore,  200. 

Babb  V.  Clemson,  210. 
Babcock  v.  Case,  79,  32V. 
Backentoss  v.  Speicher,  110. 
Backhouse  v.  Jetts,  345. 
Bacon  v.  Bronson,  S'i'S. 

—  V.  Johnson,  61,  342. 
Badger  v.  Badger,  303,  309,  367. 
Bahara  v.  Bach,  225. 

Eailey  v.  Burton,  197. 

—  V.  Jordan,  61. 

—  V.  Snyder,  65. 

—  V.  Trammel,  149. 
Bain  v.  Wilson,  327. 
Baines  v.  Williams,  310. 
Baker  v.  Howell,  187. 

—  V.  Bobbins,  327. 
_     V.  Welch,  206. 

Baldwin  v.  Allison,  155. 

—  V.  Jolmson,  245. 

—  V.  Marshall,  265. 

—  V.  liichman,  133. 
Ball  V.  Lively,  327. 
Ballanco  v.  Underbill,  418. 
Bidsdbaugh  v.  Fraser,  164. 
Baltimore  Mar.   Ins.  Co.  v.  Dalrymple, 

161. 
Bancroft  v.  Blizzard,  202, 
Banker  v.  Mills,  172. 
Bank  of  Alexandria  v.  Atwater,  207. 

—  —         V.  Patton,  206,  228, 

229. 

—  Georgia    v.   Higginbottom,   48, 

210. 

—  Orleans  V.  Torrey,  156. 

—  Pittsburg  V.  Whitehead,  262 


22 


TABLE  OF  AMERICAN  CASES  CITED. 


Bank  of  U.  S.  v.  rirown,  203. 

—  —     V,  Daniel,  397,  402. 

—  —     V.  Davis,  2(5'2. 

—  —    V.  Lee,  149. 
Bank  v.  Gore,  328. 

—  V.  Wollaston,  127. 
Banks  ik  Jiulali,  174.  305,  307. 

—  V.  Martin,  262. 
Barclay  v.  Davidson.  129. 
Bareibeau  p.  Hrant,  186. 
Barham  v.  Tuberville,  148. 
Barnes  v.  Camart,  42.5. 

—  V.  Carmack,  50, 

—  V.  McKay,  132. 
Barnett  v.  Fergus,  213. 

—  V.  Spratt,  187. 

—  V.  Stanton,  71,  101,  300. 
Barney  v.  Saunders,  154,  156. 
Barr  v.  Broadway  Ins.  Co.  417. 

—  V.  Ilatcli,  420,  441. 
Barrincass  v.  McMurray,  227. 
Barron  v.  Alexander,  101. 
Barry  v,  Whitney,  163. 
Bartle  v.  Natt.  374. 
Bartleman  v.  Douglass,  215. 
Bartlett  v.  Williams,  211. 
Barton  v.  Moss,  174. 

Bass  V.  Gilliland,  419. 
Bates  V.  Norcross,  264. 
Baugher  v.  Duplioin,  262. 

—  V,  Merry  man,  194. 
Baxter  v.  Coston,  157. 

—  V.  Gaines,  210. 
Bayard  v.  Huffman,  209. 
Baynard  v.  Norris,  370,  419. 
Bench  v.  Ollendorf,  215. 
Beal  V.  Warren,  228. 

Bean  v.  Merrick,  79,  82,  333. 

—  V.  Smith,  209,  313. 

—  V.  Valle,  364. 
Beard  v.  Campbell,  78. 

—  V   Hubble,  421. 
Beardsley  v.  Bennett,  104. 

—  V.  Knight,  418,  419. 
Beaubien  v.  Beaubien,  308,  367. 
Beaupland  v.  McKeen,  129,  133. 
Beck  V.  Simmons,  343,  419. 
Beckwith  v.  Butler,  144. 
Bedel  v.  Looinis,  186. 
Bedford  ?r.  Crane,  207. 

Beers  v.  Bottsford,  383. 

—  V.  Daw?on,  211. 

—  v.  Williams,  107. 
Beersley  v.  Hamilton,  371. 
Beeson  v.  Beeson,  158. 
Bein  v.  Heath,  149. 
Belcher  v.  Belcher,  42,  147. 
Belknap  v.  Sealey,  61,  65,  66. 
Bell  V.  Blaaey,  227,  229. 

—  71.  Byerson,  77. 

—  r.  Henderson,  77,  366. 


Bell  V.  McCauley,  228. 

—  V.  Price,  447. 

—  V.  Steel,  397. 
Bellamy  v.  Bellamy,  158. 
Bellows  V.  Steno,  410,  418. 
Bendurant  v.  Crawford,  325. 
Benedict  v.  Oilman,  225. 
Bennett  v.  Fail,  300. 

—  V.  Judson,  55,  111,  325. 

—  V.  Union  Bank,  197. 
Benton  v.  Jones,  206. 

—  V.  Stewart,  327. 
Benzein  v.  Lenoir,  239. 
B  rg  V.  Radcliffe,  427. 
Berker  v.  Vrooman,  327. 
Berrien  v.  McLane,  170. 
Betts  V.  Gunn,  410. 
Beverly  v.  Ellis,  264, 

—  V.  Rennolds,  291. 
Bibb  V.  Prather,  350. 

—  V.  Smith,  165. 

Bidault  V.  Wales,  108,  109,  110. 
Bigelow  V.  Barr,  400. 
Biggs  v.  Bai'ry,  109. 
Billw.  Webb,  154. 
Bingaman  v.  Hyatt,  236. 
Bird  V.  Aitken,  201. 

—  V.  Benton,  131. 

—  V.  Bolduc,  206. 
Birdsong  v.  Birdsong,  124. 
Birely  v.  Staley,  46. 
Bischoff  I).  Lucas,  327. 
Bissel  V.  Hopkins,  211. 
Black  V.  Jones,  217. 

—  V.  Thornton,  235. 
Blackwood  v.  Jones,  132. 
Blair  v.  McDonnell,  419. 
Blaisdell  v.  Cowell,  383. 

—  V.  Stevens,  236 
Blake  v.  Graham,  264. 

—  V.  Jones,  207. 

—  «).  Pick,  124. 
Blancbard  v.  Tyler,  318. 
Blankenskip  v.  Douglass,  248. 
Blen  V.  Bear  River,  etc.,  Co.,  329. 
Blessing  v.  Beatty,  419, 

Blight  V.  Banks,  318, 
Bliss  V.  Cottle,  328. 
Blodgett  V.  Hobart,  419. 
Blount  V.  Robeson,  172. 
Blow  V.  Maynard,  155,  203. 
Blumenthal  v.  Brainerd,  259. 
Blydenburch  v.  Welsh,  299. 
Bogard  v.  Gardley,  207. 
Boggs  V.  Merced  et  al,  132. 
Boian  V.  Headley,  233. 
Boils  V.  Boils,  198, 
Bolt  V.  Rogers,  374. 
Bond  V.  Brown,  304, 

—  V.  Clark,  325. 
Boon  V.  Miller,  415. 


TABLE  OF  AMERICAN  CASES  CITED. 


23 


Boone  V.  riules,  306,  308,  322,  370. 
Booth  V.  Bariui  ji,  230. 

—  'u.  Booth,  366. 
Boreini!^  v.  yiti^-ery,  44. 
Borhnnd  v.  Walker,  196,  345. 
Bossard  r.  Wliite,  264. 

Boston  Water  Power  Co,  v.  Gray,  447. 
Bostwick  V.  Lewns,  326. 
Boswell  V.  Biiclmiian,  318. 
Botsford  V.  McLean,  413. 
Bouck  V.  Wilber,  446. 
Boulin  V.  Pollock,  417. 
Bowers  v.  Johnson,  112. 
Bowman  v.  Bates,  97. 

—  V.  Herring,  211. 

—  V.  Wathen,  304. 

Boyce  v.  Grundy,  46,  79,  334,  343,  388. 

—  V.  Waller,  313. 

—  V.  Watson,  74. 
Boyd  V.  Barclay,  374. 

—  V.  Bopst,  10.5. 

—  V.  Brown,  325. 

—  V.  Dunlap,  210. 

—  V.  Hawkins,  154,  297. 

—  V.  Vanderkemp,  259. 
Boyer  v.  Wilson,  437. 
Bozmaii  v.  Dr.mghan,  200. 
Bracken  v.  Miller,  259,  316. 
Brackenridge  v.  Holland,  386. 
Bradbury  v.  Keas,  331,  333. 

—  V.  White,  417. 
Bradley  v.  Bosley,  73. 

~      V.  Chase,  298.  391, 
Brady  v.  Briscoe,  200. 
Brainerd  v,  Brainerd,  388. 
Brantley  v.  Key,  154. 

—  V.  West,  421. 
Brashear  v.  West,  212. 
Breck  v.  Cole,  215. 
Breed  v.  Con  ley,  264. 
Bremmel  v.  Stockton,  211. 
Brentou  v.  Davis,  107. 
Brewer  v.  Lynch,  173. 

—  V.  Vanarsdale,  178. 
Brice  v.  Brice,  144. 
Bridgen  v.  Atkins,  174. 
Briggs  V.  Parkman,  210. 

—  V.  Taylor,  239. 
Bright  V.  Boyd,  444. 
Brinkerhof  D.  Brown,  45,  154. 

—  V.  Lansing.  370. 
Broadwell  v.  Broadwell,  91,  397. 
Brock  V.  Barnes.  163,  170. 

—  V.  McKaughtrey,  383. 
Brodduc  v.  Call,~297. 
Broddus  V.  McCall,  84. 
Brogden  v.  Walker,  144,  383. 
Brooke  v.  Berry,  173,  345. 
Brooks  V.  Hamilton,  61. 

—  V.  Powers,  211. 

—  V.  Wimer,  213. 


Brothers  v.  Porter,  131. 
Browcr  v.  PeabodjjL  315. 
Brown  v.  Anderson,  245. 

—  V.  Armistead,  397 

—  V.  Bucks,  228. 

—  V.  Donald,  19G. 

—  V.  Lamphear,  416. 

—  V.  Lynch,  225. 

—  V.  McCune,  148. 

—  V.  McDonald,  199,  208. 

—  V.  Murphee  107. 

—  V.  Ptilev,  211. 

—  V.  Smith,  201. 

—  V.  Webb,  202. 

Bruce  v.  Davenport,  1 72,  299. 
Bueliler  v.  Gloninger,  375. 
Bruen  v.  Hone,  335. 
Bryan  v.  Duncan,  157. 
Bryant  v.  Kelton,  211. 

—  V.  Mansfield,  375,  397. 
Buchanan  v.  Horney.  329. 
Bucliner  v.  Forker,  353. 

Buck  V.  McCaughtry,  101,  335,  344. 

—  V.  Sherman,  384. 
Buckcr  V.  Lightner,  310. 
Bucl<ingham  v.  Smith,  132,  133,  244. 
Buckley  v.  Artcher,  109. 
Buckner  v.  Calcote,  311. 
Butlalow  V.  Buffalow,  146,  164. 
Bulord  V.  Brown,  300. 

—  V.  Caklwell,  55. 
Bulkley  v.  Starr,  292. 
Bullis  V.  Borden,  211. 
Bullock  ('.  Beemis,  345. 

—  V.  Irving,  201. 
Bum  V.  Ahl,  200. 
Bumpass  v.  Dotson,  201, 

—  V.  Plainer,  316. 

—  V.  Webb,  291,  447. 
Bunch  IK  Hurst,  144. 
Bunting  v.  Ricks,  239. 
Burbank  v.  Hammond,  196. 
Burchill  V.  Marsh,  447. 
Burley  v.  Russell,  148. 
Purnhara  v.  Chandley,  264. 
Burrill  v.  Bull,  172. 
Burrows  v.  Alter,  328. 
Burtch  V.  Hogge,  364. 
Burt  V.  Wilson,  400. 
Burton  v.  Willers,  77. 
Butler  V.  Durham,  420. 

—  V.  Haskell,    144,    173,    184,    186, 

187,  189,  297. 

—  V.  Stoddard,  201. 
Butler's  Appeal,  97. 

Byers  v.  Surget,  169,  187,  188,  295. 

Cady  V.  Owens,  127. 
Cain  V.  Guthrie,  299. 
—    V.  Jones,  229. 
CaldweU  v.  Bartlelt,  313. 


24 


TABLE    OF    AMERICAN  CASES  CIIED. 


Caldwell  v.  Caldwell,  336. 

—  V.  CaiTino;ton,  234. 

—  n  Gillis,  219. 

—  V.  Tasjgart,  157. 

—  V.  White,  345. 

—  V.  Williams,  128. 
Callen  v.  Thompson,  211. 
tJallis  V.  Ridout,  154. 

—  V.  Waddy,  310. 
Cameron  t'.  Cameron.  220. 
Camp  V.  Camp,  79,  81,  83. 
Campbell  v.  Tarter,  399. 

—  V.  Johnson,  157. 

—  V.  Sloan,  293. 

—  V.  Vining,  310. 

—  V.  "Western,  448. 

—  v.  Whittingham,  103,  133. 
Camplin  v.  Burton,  344. 

Canal  Co.  v.  Gordon,  50. 
Cannon  v.  Jenkins,  161. 
Capehart  v.  Moon,  407. 
Carberry  v.  Tannehill,  358,  411. 
Card  V.  Wallace,  446. 
Cardwell  v.  McClelland,  101, 
Carlisle  v.  Rich,  198,  207. 
Carr  v.  Bob,  311. 

—  V.  Callaghan,  103,  124,  319,  416. 

—  V.  Hill,  200. 

—  V.  Wallace,  129,  131. 
Carroll  v.  Potter,  49. 

—  V.  Rice,  299,  306,  3£5. 

—  V.  Shields,  215. 
Carpenter  V.  Hart,  293. 

—  V.  Roe,  206. 

—  V.  Stillwell,  128. 
Carson  v.  Bailie,  106. 
Carter  v.  Caitleberry,  231. 

—  V.  Castlebury,  227. 

—  V.  Champion,  264. 
Case  V.  Carroll,  169. 

—  V.  Garish,  215. 

—  V.  Hall,  103. 

—  V.  Jennings,  315. 

—  V.  Phelps,  207. 
Casey  v.  Allen,  54,  76,  384. 

—  V.  Casey,  173. 

Cathcart  v.    Robinson,   227,  364,  413, 

417. 
Catlin  V.  Grote,  131. 
Cecil  V.  Ppurger,  101,  327. 
Central  Bank  v  Copeland,  184. 

—  Ins.  Co.  V.  Protection  Ins.  Co., 
176. 

Chaflfee  v.  Fort,  108,  109. 
Chaffin  V.  Kimball,  228. 
Chamberlain  v.  Pillsbury,  106. 
—  V.  Thompson,  419. 

Chamberlaine  v.  Marsh,  416. 
Chamberlayne  v.  Temple,  45,  46. 
Champion  v.  Wliite,  328. 
Cliamijlin  v.  Lay  tin,  241,  399, 


Chnndler  v.  Wiggins,  105. 
Chapin  v.  Pease,  197, 

—  V.  W^eed,  154. 
Chapman  v.  Chapman,  358, 
Charles  v.  Dubose,  157. 
Charlton  v.  Leay,  196. 
Chenery  v.  Palmer,  211, 
Cherry'^i'.  IS'ewsom,  297. 
Chestermnn  v.  Gardner,  104,  332. 
Chew  V.  Caloiit,  241. 

—  V.  Calvei't,  134,  241, 
Chickering  v.  Hatch,  201, 
Child  V.  Brener,  1 57. 
Chipman  r.  Briggs,  66. 
Chisholm  V.  Gadsden,  93. 
Choban  v.  Jones,  264. 
Chophard  v.  Bayard,  213. 
Chouteau  v.  Sherman,  202. 
Christian  v.  Scott,  329. 
Christmas  v.  Mitchell,  241, 

—  V.  Spink,  384. 
Chumar  v.  W^ood,  210, 
Church  v.  Sterling,  172. 

City  Council  v.  Page,  266,  316, 
Clabaugh  v.  Byerly,  128. 
Clapp  V.  Leatherbee,  231, 

—  V.  Tirrell,  227.  230. 
Clapton  V.  Cozart,  79,  325. 
Clark  V.  Baird,  104. 

—  V.  Clark,  146. 

—  V.  Douglas,  196,  197,  293. 

—  V.  Dutcher,  402. 

—  V.  Everhart,  74. 

—  V.  French,  207. 

—  V.  Man.  Ins.  Co.  119. 

—  V.  Partridge,  368. 

—  V.  Van  Riemdvke,  390. 

—  ',).  White,  94,  96,  215,  325,  384* 
Clarkson  v.  Mitchell,  52. 

Clanter  »;.  Burgess,  227, 
Clay  V.  Dennis,  368. 

—  V.  Turner,  336. 
Clayborn  v.  Hill,  210. 
Clayton  v.  Brown,  228. 

—  V.  Burney,  400. 
Cleary  v.  Cour,  448. 
Cleaveland  v.  Dixon,  447. 

—  V.  Rogers,  66. 
Cleavinger  v.  Reimar,  163,  169. 
Clem  V.  New.  <fe  Dan.  R.  R.  Co.  9a 
Clemens  v.  Davis,  201. 
Clement  v.  Moore,  199. 

—  V.  Smith,  300, 
Clements  v.  Loggins,  127, 

—  V.  Reid,  358. 
Clitherall  v.  Ogilvie,  357. 
Coburn  ;•.  Pickering,  211. 
Cochran  v.  Cummings,  93. 
Cocke  V.  Hardin,  335. 

—     V.  McGinniss,  310. 
Cocks  V.  Izdi-d,  173,  224. 


TABLE  OF  AMERICAN   CASES  CITED. 


Coddington  v.  Bay,  310. 

—  V.  Goddard,  112, 
Coffee  V.  Newsom,  78,  335. 
Coffing  V.  Taylor,  409. 

Coggill  V.  Hart.  &  N.  Hav.  R.  R.  Co.  313. 

Cogiiill  V.  Boring,  328. 

Colchester  v.  Ciilver,  420. 

Colcock  V.  Reed,  105. 

Cole  V.  McGlathry,  310. 

Coleman  v.  Bank  of  Hamburg,  211. 

—  V.  Barklew,  248 

—  V.  Cocke,  197,  313. 

—  V.  Lyne,  303. 
Coles  V.  Brown,  411. 
Collier  v.  Lanier,  419. 

—  V.  Thompson,  299. 
CoUins  V.  Dennison,  56,  325. 

—  V.  McElroy,  213. 

—  V.  Myers,  211. 

—  V.  Smith,  161. 
Colquitt  V.  Thomas,  239. 
Colter  V.  Morgan,  91. 
Coltrains  v.  Causey,  375. 
Combs  V.  Cooper,  133. 
Commonwealth  v.  Rodes,  264. 
Comstock  V.  Ames,  298,  371. 

—  V.  Comstock,  174. 

—  V.  Rayford,  211. 
Conant  v.  Jackson,  144,  385. 
Concord  Banka^.Gregg,  111,112,327,325). 
Conkey  v.  Bond,  174. 

Conkling  v.  Carson,  212. 

—  V  Shelby,  213. 
Connersville  v.  Wadleigh,  79. 
Connor  v.  Henderson,  416. 
Conrad  v.  Atlantic  Fire  Ins.  Co.  211. 
Conroe  v.  Birdsall,  148. 

Conway  v.  Alexander,  194. 

—  V.  Ellison,  366. 
Conyers  v,  Ennis,  109. 

—  V.  Keenans,  310. 

—  V.  Ring,  156. 
Cook  V.  Cole,  144. 

—  V.  Collyer,  377. 

—  V.  Gilman,  327. 

—  V.  Travis,  246. 

—  V.  Williams,  308. 
Cooke  V.  Kell,  228,  229. 

—    V.  Nathan,  399. 
Coolidge  V.  Brigham,  105. 
Coon  V.  Atwell,  329. 
Cooper  V.  Crosby,  397. 
Copeland  v.  Copeland,  128. 
Coppage  V.  Barnett,  228, 
Corbett  v.  Norcross,  129, 
Corkhill  v.  Landers,  129,  138. 
Corprew  v.  Arthur,  228. 
Cosby  V.  Ross,  207. 
Cotton  V.  Hart,  237. 
Couch  V.  Sutton,   149. 
Coulson  V.  Walton,  306. 


Coults  V.  Greenhorn,  203. 
Cowan  V.  Barrett,  169. 
Cowles  V.  Baco,  127. 
Cox  V.  Buck,  131. 
—  V.  Sullivan,  163,  164. 
Crabtree  v.  Green,  448. 
Craddock  v.  Cabiness,  144. 
Cragg  V.  Martin,  200. 
Craig  V.  Leiper,  322. 

—  V.  Ward,  325. 
Cram  v.  Mitchell,  174. 
Crane  v.  Conklin,  44,  147. 

—  V.  Prather,  405. 
Cravens  v.  Booth,  149. 

—  V.  Grant,  326. 
Crawford  v.  Beetholf,  96,  321. 
Crawley  v.  Timberlake,  299,  368. 
Creath  v.  Sims,  374. 

Cressy  v.  Philips,  312. 
Crest  t).  Jack,  128,  134. 
Cries  v.  Withers,  417. 
Croat  V.  De  Wolf,  127. 
Crocker  v.  Lewis,  112. 
Crockett  v.  Lashbrock,  127. 

—  V.  Maguire,  264. 
Crofts  V.  Arthur,  197,  202,  310. 
Cromwell  v.  Owings,  447. 

—  V.  Winchester,  420. 
Cross  V.  Peters,  108. 
Crowder  v.  Langdon,  409. 
Crozier  v.  Acer,  299. 
Cruise  v.  Christopher,  147. 
Crump  V.  Dudley,  219. 

—  V.  U.  S.  Mining  Co.,  114,  116. 
Crutchfield  v.  Haynes,  154. 
Cubbins  V.  Markwood,  186. 
CuUam  V.  Branch  Bank,  329. 
Culver  V.  Avery,  329. 

Cumberland  Coal  Co.  v.  Sherman,  155, 

158,  161,  174.  297,  298,  399. 
Cummings  v.  McCuUough,  313,  346. 
Cunningham  v,  Fithian,  335. 

—  V.  Freeborn,  389. 

—  V.  Hull,  107. 

—  V.  Sliields,  374. 

—  V.  Smith,  73. 
Curd  V.  Dodd,  149. 
Currens  v.  Hart,  240. 
Currie  v.  Cowles,  344. 

—  V.  Steele,  124. 
Curtis  V.  Hitchcock,  318. 
Gushing  v.  Wyman,  327. 

Custer  V.  Titusviile  Water  &  Gas  Co.  115 

—  Tompkins  Co.  Bank,  262. 

Dacey  v.  Daniel,  200. 
Dalton  V.  Rust,  66. 
Danforth  v.  Adams,  132. 

—  V.  Wood,  210. 

Daniel  v.  Mitchell,  73,  98,  407,  416. 
Danley  v.  Rector,  131. 


2G 


TABLE  OF  AMERICAN  CASES  CITED. 


Darwin  v.  Handley,  207. 
Dausihty  v.  Savage,  215. 
Davidson  v.  Greer,  421. 

—  V.  Moss,  61,  95,  103,  334. 
Davis  V.  Bavlej-,  402. 

—  V.  Bigler,  233,  234,  237. 

—  V.  Bow  land,  334. 

—  V.  Calvert,  185. 

—  V.  Handy,  129. 

—  V.  James,  299. 

—  V.  McKally,  146, 

—  V.  Meeker'  82. 

—  V.  Morgan,  184. 

—  V.  Payne,  206. 

—  V.  Pbelps,  421. 

—  V.  Tliomas,  127. 

—  V.  Tnrner,  211. 
Davoe  v.  Fanning,  158,  161. 
Day  V.  Seeley,  146. 
Deaderick  v.  Watkins,  187. 
Dean  v.  Mason,  105. 
Dearman  v.  Dearman,  209,  220. 
De  Armand  v.  Phillips,  299. 

De  Cater  v.  Lerf«y  de  Chaumont,  157. 

Decouche  v.  Swetier,  308. 

Deep  River  Gold  Mining  Co.  v.  Fox,  175. 

Deerbell  v.  Fisher,  203. 

Delaware  v.  Ensign,  213. 

Delesdernier  v.  Moarj',  198. 

Deming  v.  Foster,  106. 

Denton  v.  M'Kenzie,  173,  389,  385. 

Dertley  v.  Murphy,  377. 

De  Rose  v.  Fay,  163. 

Desell  V.  Casey,  419. 

Devereux  v.  Burgwyn,  128. 

Devinney  v.  Xorris,  169. 

Dewev  v.  Field,  131. 

De  Witt  V.  Moulton,  264. 

Dey  V.  Dunham,  266. 

Dick  V.  Cowper,  225. 

—  V.  Grissom,  199,  389. 
Dickens  v.  Jordan,  106. 
Dickerson  v.  Tillinghast,  319. 
Dickinson  v.  Braden,  266. 

—  V.  Davis,  131. 

—  V.  Glenney,  420. 
Diehl  V.  Page,  245. 

Dill  V.  Camp,  300. 

—  V.  Shahan,  397. 
Dillard  v.  Dillard,  206. 

Dirnan  v.  Providence  R.  R.  Co.,  407. 
Disbrow  v.  Jones,  246,  299. 
Disnuikes  v.  Terry,  144,  183,,  377. 
Dixtield  V.  Newton,  132. 
Dobson  V.  Racey,  173,  174. 
Dockray  v.  Dockray,  212. 
Dodd  V.  M'e'raw,  206. 
Dodge  V.  Griswold,  46. 
Dodson  V.  Cooke,  228. 
Doe  V.  Reed,  266. 
Doggett  V.  Emerson,  98 


Dolkray  v.  Mason,  197. 
Donaldson  v.  M'Roy,  225. 
Donelson  v.  Clements,  54,  61. 
Donnell  v.  King,  370. 
Doolev  V.  Jennings,  96. 
Doolittle  V.  Lyman,  231. 
Dorr  V.  Munsell,  328. 
Dorsey  v.  Dorsey,  158. 

—  V.  Jackman,  105. 

—  V.  Smithson,  375. 
Doswell  V.  Buchanan,  264, 
Dougherty  v.  Dougherty,  299. 

—  V.  Jack,  228. 

—  V.  M'Colgan,  194. 
Douglas  V.  Dunlap,  231. 
Dow  V.  Ker,  .'^97. 
Downes  v.  Kissam,  197. 
Downey  v.  Garrard,  169. 
Downing  v.  Major,  165. 
Dovle  V.  Teas,  240. 

Drake  v.  Collins,  397. 

—  V.  Glover,  149. 

—  V.  Latham,  85. 
Drew  V.  Clarke.  91. 
Driver  v.  Fortune,  184.' 
Drury  v.  Cross,  202. 
Dudley  v.  Little,  224,  225. 
Dugan  V.  Gittings,  390. 

—  V.  Massey,  197. 

—  V.  \"attier,  313,  318. 
Duncan  v.  J.eter,  335. 
Dunham  v.  Dey,  266. 
Dunlob  V.  Richards,  176. 
Dunn  V.  Amass,  147. 

—    V.  Chambers,  189. 
Dunnock  v.  Dunnock,  220. 
Duphey  v.  Frenage,  264,  318. 
Dupont  V.  W'etherman,  321. 
Dupre  V.  Thompson,  400. 
Durant  v.  Bacot,  428. 

—  V.  Durant,  397. 
Durell  V.  Halev,  108,  109. 
Duval  V.  Mowi-y,  328. 
Duvall  V.  Stafford,  310. 

Eagle  V.  Burns,  130,  131. 

Eastland  v.  Vanarsdale,  357. 

East  Tennessee  R.R.  Co.  v.  Gammon,  115, 

Eddins  v.  Wilson,  231. 

Edgington  v.  Williams,  199. 

Edick  V.  Crim,  105. 

Edmonds  v.  Goodwin,  311. 

Edwards  v.  Morris,  234. 

—  V.  Roberts,  299. 
Edzell  V.  Hart,  213. 
Ege  V.  Koontz,  402. 
Eigleberger  v.  Kibler,  208,  309. 
Eishleman  v.  Lewis,  173. 
Elder  i'.  Elder,  418. 

Eldred  v.  Hazlett,  128. 
Elliott  V.  Boaly,  83. 


TABLE  OF  AMERICAN  CASES  CITED. 


'Si 


Elliott  V.  Boaz,  56. 

—  V.  Horn.  197,  227. 

—  t.  Swartwout,  402. 
Ellis  V.  Burden,  S58. 

—  V.  Graves,  345. 
Elmendorf  v.  Taylor,  804,  308. 
El  well  V.  Chamberlain,  111. 
Ely  V.  Pcrrine,  412. 

—  V.  Scofiekl,  319. 

—  V.  Wilcox,  248. 
Emerson  v.  Udall,  288,  292. 
Emery  v.  Owings,  2'.)1. 
Emmons  v.  Murraj-,  245. 
Enders  v.  Williams,  228,  229. 
Endor  v.  Scott,  7  I . 
English  V.  Beuwood,  335. 

Epley  V.  Witherow,  129,  131,  235. 
Erwin  V.  Parham,  186. 
Esham  v.  taniar,  184. 
Evans  v.  Boiling,  84,  334. 

—  V.  Ellis,  164. 
Evarts  v.  Strodo,  399. 
Ewiiig  V.  Beaiichamp,  447. 

—  V.  Cantrell,  209. 

Eyre  v.  Potter,  146,  186,  366,  383. 

Fall  i>.  Torreance,  311. 
Fallon  V.  Hood,  78. 

—  V.  Kelioe,  265. 
Farley  v.  Bryant,  409,  421. 
Farmers'  Bank  v.  Douglas,  200. 

—  of  Va,  V.  Groves,  52. 

Farnam  v.   Brooks,   95,   144,  146,   174. 

186,   191,  308,   310,   311,  367,  389. 
Farns worth  v.  Bell,  198. 

—         V.  Shepherd,  210. 
Farrar  v.  Alston,  78,  94,  325. 

—  V  Bridges,  41. 

Farrell  Foundry  Co.  v.  Dart,  263. 
Farrow  v.  Teackle,  197. 
Faust  V.  Smith,  246. 
Fay  V.  Oliver,  52. 
Fee  V.  Fee,  310. 
Feigley  v.  Feigley,  198. 
Fenimore  v.  United  States,  324. 
Fenno  v.  Say  res,  316. 
Fergerson  v.  Fergerson,  397. 
Ferris  v.  Coover,  133. 
Ferson  v.  Sanger,  306,  407. 
Field  V.  Arrowsmith,  157. 
Filton  V.  Pitneau,  204. 
Finley  v.  Lynch,  299. 

—  V.  Lynn,  419. 

Fireman's  Insurance  Co.  v,  Powell,  420, 
Tuh  V.  Cleland,  9n. 
—   V.  Miller,  178. 
Fisher  v.  Boody.  366. 

—  V.  Probart,  83. 
Fisl>er's  Appeal,  173. 
Fisk  V.  Tank,  107. 
Fitzgerald  v.  Fou-istal,  375. 


Fitzgerald  v.  Peck,  398. 
Fitzimmons  v.  Ou,<len,  316. 

—  V.  Joslin,  112,  114. 

Fitzpatrick  v.  Beattj',  366. 
Flaag  V.  Mann,  182,  235,  245,  300,  313, 

^318,  389,  390. 
Flagier  v.  Preiss,  388. 
Flake  v.  Brown,  198. 
Fleming  v.  Townsend,  234. 
Fletcher  v.  Commonwealth  Ins.  Co.,  119. 
Floyd  V.  Good\\-in,  211. 
Foley  V.  Cowgill,  82. 

—  V.  Knight,  211. 
Folk  V.  Birdelmar,  1 28. 

—  V.  Beidelman,  132. 
Fooks  V.  Waples,  326. 
Footman  v.  Pendergrass,  226,  238. 
Ford  V.  Harrington,  378. 

—  V.  Heron,  186. 

—  V.  Williams,  201,  213. 
Forey  v.  Clark,  366. 
Forkner  v.  Stuart,  211. 
Foster  v.  Gersett,  335. 

—  V.  Gillman,  329. 

—  V.  McGregor,  209. 

—  V.  Walton,  228,  231. 
Foulk  V.  McFarlaus,  1 98. 
Fowler  v.  Frisbie,  198. 

—  V.  Stoneum,  228,  231. 

—  V.  Waldrip,  234. 
Fox  V.  Clark,  197. 
Frakes  v.  Browu.  198. 
Franchot  v.  Leach,  328. 
Franklin  Bank  v  Cooper,  123 
FrankUn  v.  Elzell,  113. 

—  V.  Ridenour,  144. 

—  V.  Waters,  310. 
Fratt  V.  Fiske,  299. 
Frazier  v.  Gervais,  97. 
Freelaud  v.  Eldridge,  144. 
Freelove  v.  Cole,  377. 
Freeman  v.  Clute,  107. 

—  V.  Curtis,  399. 

—  r.  Dui'gins,  144. 

—  V.  Eatuian,  227. 

—  V,  Harwood,  154. 

—  V.  Lewis,  231. 

—  V.  Piauson,  213, 

—  V.  Staats,  332. 
French  v.  French,  147. 

—  V.  White,  328. 
Frew  V.  Daenman,  319. 
Frield  v.  Simcoe,  211. 
Frisbie  v.  Ballance,  357. 

—  V.  McCarty,  228. 
Frost  V.  Beekman,'  265,  370. 

—  V.  Raymond,  104. 

—  V.  Warren,  201,213. 
Fulknwider  v.  Roberts,  229,  231 
Fuller  V.  Iloaden,  04. 

—  V.  Perkins,  358. 


28 


TABLE  OJF  AMERICAN  C^SES  CITED. 


Fuller  V.  Sears,  210. 

Fulton  Bank  v.  N.  Y.  &c.  Canal  Co.,  2G2. 

Furris  v.  Dunham,  374. 

Gaines  v.  Acre,  174. 
Gaither  v.  Gaitlier,  275. 
Galatian  v.  Cunningham,  371. 

—  V.  Erwin,    177,  236,  353,  370, 
371. 

Gall)raith  v.  Elder,  167. 
Gale  V.  Gale,  42. 

—  V.  AVells,  178. 
Gallagher  v.  Waring,  107. 
Gallego  V.  Galleo:o,  206. 
Gallion  v.  McCaslin,  322. 
Galloway  v.  Finley,  345. 

—  V.  Holmes.  49. 

—  V.  "Witherspoon,  147. 
Galpin  v.  Abbott,  264. 

Gait  V.  Dibrell,  264. 
Gardiner  Bank  v.  Wheaton,  346,  390. 
Gardiner  v.  Gardiner,  185. 
Gardner  v.  Booth,  228. 

—  V.  Cole,  328,  229. 

—  V.  Gardner,  419. 

—  V.  McEwen,  213. 

—  V.  Ogden,  172,  344. 
Garger  v.  Small,  364. 
Garland  v,  Bowling,  335. 

—  V.  Chambers,  211, 
Garner  v.  Bird,  132,  414. 

—  V.  Garner,  399. 

—  V.  Leorett,  335. 
Garrell  v.  Grant,  2i»3. 
Garrison  v.  Rives,  233. 
Garrow  v.  Davis,  94.  325,  389. 
Garvin  v.  Lowez,  300. 

Gass  V.  Moson,  146. 
Gates  V.  Cole,  449. 
Gatling  v.  Newell,  335. 

—  V.  Rodman,  149. 
Gazzam  v.  Poyntz,  390. 
Gelton  V.  Hawkins,  419. 

Geiieral  Insurance  Co.  v.  U.  S.  Insurance 

Co.,  263. 
George  v.  Richardson,  190. 
Gettv  V.  Rountree,  107. 
Gibson  v.  Love,  211,  233. 

—  V.  Randolph,  383. 
Giddings  v.  Eastman,  163,  313. 
Gifford  V.  Carvill,  326. 
Gihon  V.  Lew,  106. 

Gilbert  v.  Gilbert.  397. 
Giles  V.  Williams.  368. 
Gill  V.  Carter,  294. 

—  V.  Grithtli.  265. 
Gillett  V.  Phelps,  73. 
Gillespie  ».  Moon,  416,  418,421. 
Giimore  v.  Morgan,  405. 

Gist  V,  Pressley,  210. 
Glass  V.  Brown,  345. 


Glasscock  v.  Batton,  210. 

—  V.  Minor,  78. 
Glassell  v.  Thomas,  336,  416. 
Glidden  v.  Strippler,  149,  150. 
Glover  v.  Smith,  344. 
Golden  v.  Maupin,  336. 

Good  V.  Hawkins,  90,  225,  383. 

—    V.  Herr,  397. 
Goode  V.  Goode,  448. 
Goodell  V.  Field,  418. 

—  V.  Taylor,  199. 
Goodworth  v.  Paine,  197. 
Gordere  v.  Downing,  410. 
Gordon  v.  Parmelee,  329. 

—  V.  Sizer,  241. 
Gottschalk  v.  De  Santos,  131. 
Gould  V.  Gould,  174. 

—  V.  Womack,  357. 
Goustt'.  Martin,  318,  319. 
Gouverneur  v.  Elmendorf,  366. 

—  V.  Titus,  420. 

Governor  v.  Freeman,  131. 
Graham  v.  Davidson,  303. 

—  V.  Torreance,  304. 
Grannis  v.  Smith,  196,  390. 
Grant  v.  Cole,  259. 

—  V.  Lloyd,  224. 

—  V.  Ser'tzinger,  172. 
Grantland  v.  Wright,  66. 
Grapengether  v.  Fejervary,  420, 
Graves  v.  Graves,  241. 

—  V.  Mattingley,  416. 

—  V.  Spier,  112. 

—  V.  White,  93, 
Gray  v.  Bartlett,  133. 

—  V.  Emmons,  163. 

—  V.  Rumph,  420. 

—  V  Tappan,  198. 

Great  Falls  Co.  v,  Worster,  246. 
Green  v.  Bateman,  416. 

—  V.  Drinker,  248. 

—  V.  Goodall,  217. 

—  V.  Morris,  &c.  R.R.  Co.,  399. 

—  V.  Tanner,  202,  212,  312,  313,389. 

—  V.  Thompson,  187,  189. 

—  V.  W^inter,  154. 
Greenwood  v.  Spring,  176. 
Greer  v.  Boone,  412. 

—  V.  Caldwell,  413. 
Gregg  V.  Sayers,  385. 
Greiggs  v.  AVoodruff,  83. 
Griffin  v.  Nitcher,  46. 

—  V.  Sketto,  295. 

Griffith  V.  Frederick  Co.  Bank,  14Y. 

—  V.  Griffith,  241,  371. 
Grimes  v.  Hoyt,  378. 
Grimstone  v.  Carter,  245. 
Griswold  v.  Haven,  112. 

—  V.  Smith,  244. 
Groff  v.  Hansel,  327 
Grundy  v.  Jackson,  344. 


TABLE  OF  AMERICAiJ   CASES  CITED. 


29 


Giilick  V.  Ward,  224. 
Gulth  V.  White,  327. 
Gnnter  v.  Thomas,  397. 
Guthrie  v.  Gardner,  197. 
Guy  V.  Faris,  197. 
Gwynu  v.  Hamilton,  397. 

—  V.  Turner,  264. 

Ilaclvwith  V.  Dawson,  241,  246. 
Iladdcick  V.  Williams,  408. 
Haden  v.  Garden,  44. 
Hadley  v.  Latimer,  144. 
Hadslior  v.  Williams,  201, 
Haines  v.  Coales,  188. 
Halhert  v.  Grant,  45,  46,  103. 
Halcome  v.  Ray,  201. 
Halett  V.  Collins,  144,  161,  305,  322. 
Hall  V.  Edrii.gton,  206. 

—  V.  Fisher,  129. 

—  V.  Hall,  186,  294. 

-  V.  Ilinks,  313. 

—  V.  Mayhew,  65, 

—  V.  Naylor,  109. 

—  V.  Paisons,  210. 

—  V.  Perkins,  190. 

—  V.  Hops,  357. 

—  V.  Sands,  207. 

—  V.  Timmons,  148. 

Halls  V.  Thompson,  73,  77,  78,  82,  84. 
Halsey  V.  Whitney,  212. 
Hamiiton  v.  Beal,  384. 

—  V.  Ganvard  106. 

—  V.  llussell.  210. 

—  V.  Smith,  310. 
_       V.  Thomas,  207. 

Hanford  v.  Artcher,  211. 
Hauly  V.  Morse,  244. 
Hanna  v.  Spotts,  177,  179. 
Hannay  v.  Eve,  374. 
Hanzen  v.  Power,  207. 
Hardeman  v.  Purge,.  187,  188. 

—  V.  Cuiian,  335. 

Hardinge  v.  Handy,  146,  345,  348,  366. 

—       V.  Randall,  55,  355,  413. 
Hardy  v.  Summers,  244. 
Hargraves  I'.  King,  172. 
Harlan  v.  Barnes,  208. 
Harman  v.  Abbey,  213. 
Harper  v.  Reno,  264. 

—  V.  Scott,  234, 
Harrell?;.  Hill,  65. 

—  V.  Kelly,  309,  310. 
Harris  w.  Alcock,  lii9. 

—  V.  Arnold,  245. 

—  t).  Carter,  237,  244. 

—  V.  Columbiana  Co.  Lis,  Co.,  420. 

—  V.  Delaniiir,  388. 

—  V.  Flv,  370. 

—  V.  Tyson,  97. 
Harrison  *'.  Edwards,  130. 

_        V.  Mirge,  427. 


Harrison  v.  Talbot,  65. 

—  V.  Tenn,  363, 
Harrisburg  Bank  v.  Foster,  310 
Harrod  v.  Cowan,  408. 
Hartman  v.  Diller,  200. 

Hart  V.  Farmers'  <fec.  Bank,  259. 

—  V.  Stull,  65. 

—  V.  Talmadge,  325. 
Hartshorn  v.  Cuttrell,  447. 
Harvey  v.  Smith,  78. 
Hathorn  v.  Hodges,  328, 
Hattin  v.  Detinaud,  447. 
Hauley  v.  Marcius,  154. 
Haven  v.  Foster,  402. 

—  V.  Low,  211,  375. 

—  V.  Richardson,  212. 
Havens  v.  Dale,  248. 

Hawley  V.  Cramer,  158,  169,   190,  303, 

304,  305,  312. 
Hays  V.  Henry,  220. 
Havwood  V.  Marsh,  309, 
Hazard  v.  Irwin,  61,  328, 
Hazard  v.  Irvin,  73, 
Head  v.  Muir,  447. 
Henderson  v.  Dodd,  207. 

—  V.  Hays,  357, 

—  V.  Railroad  Co.,  61,  114, 115. 
Hendricks  v.  Robinson,  45,  197. 
Hennequin  v.  Kaylor,  109,  110. 
Henry  v.  FuUerton,  207. 

—  V.  Raiman,  168. 
Ilenshaw  v.  Atkins,  46. 

—  V.  Bryant,  108,  331. 
Hcilbronv.  Bissell,397. 
Hepburn  v.  McDowell,   134. 
Hermance  v.  Vernoy,  105. 
Herrick  v.  Blair,  292. 
Herriu  v.  Libbey,  328.  330. 
Herring  v.  Winans,  370. 

Hester  v.  Memphis  Ac.  Railroad  Co.,  115. 

—  V.  Wilkinson,  207. 
Hewes  v.  W'iswall,  245. 
Hevdock  v.  Stanhope,  212. 
Hiatt  V.  W^ade,  228. 
Hicks  v.  Cram,  127. 
Hickman  ?;.  Quinn,  201. 
Higginbotham  v.  Barnett,  129. 
Iliggins  V.  Mayer,  215. 

Hinh  V.  Batte,'3tl9. 
Highberger  v.  StilHer,  144. 
Hiidreth  v.  Sands.  200. 
Hill  V.  Bush,  74,  408. 

—  V.  Paul,  316. 

—  V.  McLaurin,  144. 
Hillman  v.  W^rigiit,  421. 
lliiR-hman  v.  Oiiians,  397. 
Hinckley  v.  Hendrickson,  327. 
Hiude  V.  Longwoith,  206,  2oa 

—  V.  Vattier,  237. 
Hitchcock  V.  Covill,  108. 
Hite  V.  Hite,  311. 


30 


TABLE  OF  AMERICAN  CASES  CITED. 


Hobbs  V.  Bibb,  211. 

—      V.  Parker,  96. 
Hockenburg  v.  Carlisle,  167. 
Hoe  V.  Sanborn,  107. 
Hoffman  Steamboat  Co.  v.  Cumberland 

Coal  Co.,  155,  161. 
Hoffman  Steam  Coal  Co.  v.  Cumberland 

Coal  Co.,  297. 
Hoitt  V.  Holcomb,  44,  79,  328,  368. 
Hoke  II.  Henderson,  196. 
Holbrook  v.  Burt,  388, 
Holden  v.  Crawford,  190. 
Hollingsworth  v.  Liipton,  447. 
Holly  V.  Young,  328. 
Holmes  v.  Barker,  437. 

—  V.  Clark,  325. 

—  V.  Fresh,  190. 

—  V.  Hokoes,  220. 

—  V.  Stout,  248,  316. 
Hood  V.  Fabnestock,  259. 
Hoopes  V.  Burnett,  163. 
Hope  V.  Evans,  336. 
Hopkins  v.  Stump,  358. 

—  V.  Webb,  229. 
Hopkirk  v.  Randolph,  206. 
Hopper  V.  Lisk,  326. 
Hopping  V.  Burnam,  266, 
Horem  V.  Libbey,  330. 
Hornbeck  v.  Vanmetre,  211. 
Hotchkiss  V.  Fortson,  147. 
Hough  V.  Hunt,  184. 

—  V.  Richardson,  75,  98,  114, 
Housatonic  Bank  v.  Martin,  262, 
Hovey  v.  Blanchai'd,  258. 

How  V.  Wayman,  209. 
—    V.  Waysman,  231. 
Howard  v.  Carpenter,  439. 

—  V.  Edgill,  190. 

-  V.  Hoev,  107. 

—  V.  Warfield,  447. 

—  V.  "Williams,  228. 
Howe  V.  Bishop,  197, 

—  V.  "Ward,  198. 
Howell  V.  Baker,  169. 

—  v.  Ransom,   165. 
Howland  v.  Scott,  131. 
Hoyt  V.  Sheldon,  238. 
Hubbard  v.  Turner,  201, 

—  V.  Martin,  402. 
Huckabee  v.  Autter,  327. 
Huden  v.  Ware,  399. 
Hudnal  v.  Wilder,  228,  234. 
Hudson  V.  Warner,  266. 
Hutfv.  Earl.  15-0. 
Hughes  I'.  Bloomer,  346. 

—  V.  Edwards,  264. 

—  V.  Sloan,  75. 

—  V.  U,  S.,  244. 

Humbart  v.  Trinity  Cliurch,  304,  310. 
Hundley  v.  Webb,' 2 11. 
Hunt  V.  Bass,  157,  184. 


Hunt    V.  Freeman,  419. 

—  V.  McConnell,  334, 

—  V.  Moore,  55,  113,  114, 

—  V.  Rousnianier,  397,  428. 

—  V.  White,  448. 

—  V.  WickUffe,  304. 
Hunter  v.  Foster,  148,  149,  196. 

—  V.  Goudy,  409. 

—  V.  Hudson  River  Iron  Co. 

113. 
Huntington  v.  Hall,  105. 
Hurst  V.  Hurst,  447. 
Huson  V.  Pitman,  418,  420. 
Huston  V.  Cantril,  309. 
Hutchinson  v.  Brown,  147,  383. 

—  V.  Kellv,  198,  207. 

—  V.  Tindal,  147, 
Hyatt  V.  Boyle,  106. 
Hyde  v.  Tanner,  425. 
Hyne  v.  Campbell,  417. 
Hvnson  v.  Dunn,  368. 
Hyslop  V.  Clark,  197,  212. 

Ide  V.  Gray,  94. 

Ilej'  V.  Kiswanger,  207. 

Ingalls  V.  Morgan,  258. 

Ingerson  v.  Starkweather,  173,  318 

Ingraham  v.  WheeLr,  212. 

—  V.  Morgan,  47,  103,  319. 

—  V.  Phillips,  207,  266. 
Irick  V.  Fulton,  416. 

Irish  V.  Morse,  210. 

Irving  V.  Thomas,  76,  300. 

Irwin  V.  Sherrill,  324. 

Isaac  V.  Clark,  161. 

Isham  V.  Bennington  Iron  Co.,  264. 

Iversv.  Chandler,  131. 

Izard  V.  Izard,  203. 

Jackson  v.  Ashton,  343. 

—  V.  Henrv,  316. 

—  V.  Hodg'^es,  216. 

—  V.  Inabit,  132. 

—  V.  Leek,  266. 

—  V.  Myers,  198. 

—  V.  Parker,  196. 

—  V.  Payne,  448. 

—  V.  Summervillc,  318. 

—  V.  Town,  228. 
James  v.  Bird,  375. 

—  V.  Drake,  235. 

—  V.  Langdon,  144. 

—  V.  McKcrnan,  172. 
Jameson  v.  Glasscock,  154. 
Jankin  v.  Simpson,  52, 
Jarvis  v.  Davis,  210. 
Jasper  v.  Hamilton,  90,  104 
Jemison  v.  Woodruff,  329. 

—  V.  Eldridse,  238. 
Jenkins  v.  Bodley,  244,  370, 

—  V.  Hogg,  225. 


TABLE  OF  AjMEEICAII  CASES  CITED. 


31 


Jenkins  r.  Tye,  180,  303. 
Jenks  V.  Fritz,  405. 
Jenninga  v.  Gaze,  52. 

—      V.  Wood,  264,  266. 
Jewettv.  Palmer,  318. 

—  V.  Petit,  52. 

—  V.  Miller,  154. 
Johns  V.  Reanlon,  264. 
Johnson  v.  Bennett,  157. 

—  «.  BoyIes,315. 

—  V.  Braudis,  201. 

—  V.  Cooper,  378. 

—  V.  Hendley,  46. 

—  V.  Johnson,  178,  303. 
^      V.  Jones,  335. 

—  V,  Noble,  447. 

—  V.  Pryor,  104. 

—  V.  Tliweatt,  241. 
Johnston  v.  Cope,  106. 

—  V.  Glancey,  245. 

—  V.  Gwathmey,  241. 

—  V.  La  Motte,  225. 
Jones  V.  BoUes,  43. 

—  V.  Bra m ford,  258. 

—  V.  Comer,  375. 

—  V.  Conoway,  310. 

—  V.  Green,  46. 

—  V.  Hail,  233. 

—  V.  Henry,  203. 

—  V.  Plater,  66. 

—  V.  Read,  318. 

—  V.  Sass.'r,  129. 

—  V.  Watkins,  402. 

—  V.  ZoUicoflfer,  321. 
Joplin  V.  D(.oley,  336. 
Jopping  V.  Dorie}',  334. 
Jorda  V.  L'wis,  211. 
Jordan  v.  Hyatt,  292. 

—  V.  Stevens,  399. 

Jouzin  V.  Toulmin,  55,  95,  18T,  189,  408. 

Joy  II.  Sears,  211. 

Joyce  V.  Taylor,  61. 

Judge  V.  Wiildns.  188. 

Junction  R.  R.  Co.  v.  Harpold,  132. 

Kanada  V.  North,  172. 

Kane  v.  Bloodgood,  304,  308. 

Kayser  v.  Sichcl,  328. 

Kearney  v.  Taylor,  159,  173,  225. 

Keaton  v.  Cobbs.  154. 

Keeblev.  Cummins,  144. 

Keelerw.  Vantuyle,  131. 

Keen  v.  Coleman,  149. 

—  V.  Hartman,  149. 
Keenan  v.  Mo.,  <fec.  Ins.  Co.,  260. 
Keiiihler  v.  Savage  M.uuif.  Co.,  172. 
Keitcrease  v.  Levin,  318, 

Keller  v.  Nutz,  264. 
Kelly  V.  McGuire,  144. 

—  V.  Pember,  326. 
Kelsey  v.  Hobby,  184. 
Kempner  v.  rlmichill,  200. 
Kendall  v.  Lawrence,  248. 


Kennedy  v.  Johnson,  103. 

—  V.  Kemiedy.  42,  157,  3C7,  388, 
Kenney  v.  Udall,  184. 

Kent  V.  Carcaud,  06. 
Kenzon  v.  Weltz,  397. 
Kepner  v.  Buckhart,  196. 
Kerr  v.  Kitchen,  241. 
Kerssilbrack  v.  Livingston,  418. 
Ketchum  v,  Catliu,  4()5. 

—  V.  Stoat,  60. 

—  V.  Watson,  211. 
Kettlewell  v.  Stewart,  212. 
Keutgen  v.  Purks,  328. 
Key  ten  v.  Branford,  419. 
Killough  V.  Steele,  199. 
KimbaU  v.  Cunningham,  52. 

—  V.  Hutchins,  231. 
Kimmel  v.  Mesright,  197. 
King  v.  Cohon,  144. 

—  V.  Doolittle,  397. 

—  V.  Eagle,  325. 

—  V.  Hamilton,  357. 

—  V.  Morford,  306. 

—  V.  Wilcox,  207. 
Kingsbury  v.  Ta3'lor,  106. 
Kinney  v.  Kiernan,  52,  327,  329. 
Kintzing  v.  McEh-ath,  97. 
Kirby  v.  Ingersoll,  41,  197. 

—  V.  Taylor,  178. 

—  ■;;.  Turner,  178. 
Kirtknd«.  Snow,  210. 
Kissam  v.  Edmondston,  200. 
Kite  V.  Lumpkin,  408. 
Knabe  v.  Pernot,  172. 
Knobb  V.  Lindsay,  187,  363. 
Knotts  V.  Ginger,  206. 
KuoufF?;.  Thomj)soii,  134. 
Knowlton  v.  Kicldes,  291. 
Knox  V,  Thompson,  245. 
Knuckolls  V.  Lea.  299. 
Kuykendall  v,  McDonald,  211. 

Lackey  v.  Stouder,  105. 
Lacy  V.  Wilson,  316. 
Laidlaw  v.  Organ,  55,  9Y. 
Lamb  v.  Harris,  407. 
Lamis  v.  Aukl,  105. 
Lamkin  v.  Reese,  419. 
Lammott  v,  Bowiy,  399. 
Lamont  v.  Stimson,  239. 
Lancaster  v.  Dolan,  228,  229,  231 
Land  v.  Jeffries,  196. 
Landis  v.  Brant,  244. 
Lane  v.  Borland,  210. 

—     V.  Robinson,  109. 
Lang  V.  Lee,  213. 
Langden  v.  Woodfield,  234. 
Langlord  v.  Fly,  198. 
Lankton  v.  Scott,  292. 
Lansing  v.  Woodworth,  197 
Larkins  ;;.  Bidille,  419. 
Lasselle  v.  Barnett,  131,  237,  264 
Latter  v.  Morrison,  227,  230. 


32 


TABLE  OF  AMEKICAX  CASES  CITED. 


Lawrence  v.  Penubien,  400. 

—  V.  Cl:irk-,  215. 

—  I'.  liaiul,  111. 

—  V.  Tucker,  259. 
LawTison  V.  Baer,  101, 
Lawton  v.  Lcvj-,  4G. 

Lea  V.  Poke  Co.  Copper  Co.,  244. 

Leach  v.  Fowler,  168. 

Leary  v.  Cox,  347. 

Leavitt  v.  Taliner,  397,  414. 

Lecutt  V.  Siillee,  165. 

Ledgard  v.  Butler,  231. 

Lee  V.  Fo.x,  177,  178. 

—  V.  Lee,  288. 

—  V.  Patillo,  290. 

—  V.  Porter,  130. 

—  V.  Vauglian,  339. 
Leftwicb  v.  Oiiie,  370. 
Legatt  V.  Sallee,  164,  1^0. 
Leger  v.  BonafFe,  416. 
Legro  V.  Lord,  209. 
Leigh  V.  Crump,  357. 
Leisinring  v.  Black,  169. 
Leitensdorfer  v.  l^elphy,  418. 
Lemmon  v.  Browr.,  312. 
Lennox  v.  Notix-b';,  154. 
Leonard  v.  Austin,  419. 

—  V.  Pitney,  310. 
Lerow  v.  Wihuarth,  206. 
Le  Roy  v.  I'latt,  420. 
Letcher  v.  Xorton,  210. 
Lewis  f.  A.  J.,  165,  169. 

—  V.  Baird,  264. 

—  V.  Beattv,  319. 

—  V.  Houston,  310. 

—  V.  Love,  229,  231. 

—  V.  McLenion,  61.  86. 

—  V.  San  Anionij,  132. 
Lexington  v.  Lindsay,  308. 
Leyne  v.  Bank  of  K}'.,  206. 
Lies  V.  Stubb,  409. 
Ligbtfoot  V.  Colgin,  220. 
Lightney  v.  Mooney,  264. 
Ligon  V.  P()2:er3,  420. 
Lillard  /■.  M'Gee,  198. 
Lily  V.  Wolf,  264. 
Lincoln  v.  Wri   lit,  236. 

V.  jidsay  v.  Lindsay,  208. 

—  V.  Rankin,  316. 
Lines  v.  Darden,  439. 
Linkuw.  Smiti),  217. 
Lippincott  v.  Barker,  212. 

—  V.  Stokes,  439. 
Lishey  v.  Clayton,  209. 
Litchfield  Bank  v.  Peck,  116. 
Livermore  v.  Johnson,  310. 
Livingston  v.  Littell,  211. 

—  II.  Peru  Iron  Co.,  97 
Lloyd  V.  Brewster,  108. 

—  V.  Lynch,  319. 
Lobdell  V.  Baker,  111. 
Lockbridge  v.  Poster  et  al,  48,  61. 
Lockwood  V.  Kelson,  202. 


Locke  V.  Armstrong,  308,  311. 

—  V.  Stevens,  381. 
Long  V.  Iliekingbottonj,  105. 

—  V.  Long,  377. 
Longworth  v.  Hunt,  309. 
Looniis  V.  Wainwright,  62. 
Lord  V.  Col  ley,  326. 

—  V.  Goddard,  326. 
Lothrop  V.  King,  215. 
Love  V.  Bcik.  i? 

—  V.  Braxton,  312. 

—  V.  Lea,  177. 

—  V.  Oldham,  326. 
Low  V.  Treadwell,  364. 
Lowndes  v.  Chisolm,  399. 
Lowry  v.  Brown,  240, 

—  V.  Pinson,  201, 
Lucas  V.  Mitchell,  374. 
Ludlow  V.  Cooper,  304. 
Lupin  V.  Marie,  108,  109. 
Lupton  V.  Cornell,  266. 

—  V.  Janney,  303. 
Lutz  V.  Sinthicum,  292. 
Lukin  V.  Aird,  196. 
Lyman  v.  Little,  421. 

—  V.  U.  S.  Ins.  Co.,  42L 

—  V.  Utica  Ins.  Co.,  410. 
Lynch  v.  Tibbits,  50. 
Lynde  v.  McGregor,  200, 

Lyne  i'.  Bank  of  Ky-,  227,  228,  263 
Lyon  V.  Richmond,  397. 

—  V.  Senders,  397. 

—  V.  Tallmadge,  184,  402. 

Mace  V.  Boyer,  146. 
Mackie  v.  Cairns,  196,  197, 
Mackinley  v.  McGie^or,  109,  110. 
Mawm  V.  Shepperd,  246. 
Maddox  v.  Simmons,  190, 
Magniac  v.  Thompson,  202,  398. 
Mahone  v.  Reeves,  327. 
Maine  v.  King,  105. 
Mallory  v.  Leach,  326. 

—  V.  Stodder,  316. 
Manes  v.  Durant,  217. 
Maney  v.  Kil lough,  210. 
Manhattan  Co.  j'.^Evertson,  197, 198,  370 
Manley  v.  Killough,  211. 

Mann  v.  Betterly,  144,  190. 
Manney  v.  Eater,  334. 

—  V.  Porter,  82,  104. 
Manz  V.  Beekman  Iron  Co.,  419, 
Marbury  v.  Brooks,  212. 

—  V.  Stonestreet,  65. 
March  v.  Weekerly,  131, 
Mark  v.  Lawrence,  161, 
Markham  v.  Todd,  367. 
Marshall  v.  Billingslea,  144. 

—  V.  Buchanan,  3^5. 

—  V.  Gray,  325. 

—  V.  Joy,  165,  173,  174. 

—  V.  Martin,  144. 

—  V.  Stephens,  157, 


TABLE  OF  A]MERICAN  CASES  CITED. 


33 


Martin  t).  Blight,  173,  224. 

—  V.  Martin,  144. 

—  V.  I'ennock,  93. 

—  V.  Raulett,  224. 

—  V.  Roberts,  52. 

—  V.  Wharton,  90. 
Marvin  v.  Bennett,  65,  416. 
Mason  v.  Baker,  375. 

—  V.  Crosby,  76,  112. 

—  V.  Martin,  157. 

—  ■   V.  Paine,  241. 

—  V.  Ron-ers,  207. 

—  V.  Williams,  144. 
Massie  v.  Greenhow,  238. 

—  V.  Watts,  172. 
Massoii  V.  Bovet,  52. 

Mass.  Turnpike  Co.  v.  Field,  310. 
Massy  v.  Mcllvain,  234. 

—  V.  Mcliwain,  246. 
Matta  V.  Hentlersnn,  335. 
Matter  of  Oakley,  154. 

—  Post,  164. 
Mattheus  v.  Dezaud,  157. 
Matthews  v.  Bliss,  97. 

—  V.  Demerritt,  248. 

—  V.  Light,  172. 

—  V.  W'iivi.e,  197. 
Mattingly  v.  Nve,  206. 
Mattock  V.  Todd,  77. 
Maxwell  v.  Kennedy,  311. 

—  V.  Petinn  r,  147. 
Mayer  v.  ("lark,  211. 
Mayfield  v.  Averitt,  240. 
Mayor  &  C.  C.  v.  Williams,  228. 
McAfferty  v.  Conover,  132. 
McAninch  v.  Laiighlin,  397. 
McBride  v.  Wilkinson,  444. 
McCall  V.  Hinkley,  212. 
McCarty  v.  Bee,  157. 
McCauley  v.  Rhodes,  203. 
M'Clantihan  v.  Henderson,  154. 
McClure  v.  Ashbj%  310. 

—  V.  Miller,  155,  219. 
M'Clure  v.  Purcell,  374. 
McCobb  V.  Richardson,  409. 
M'Conike  v.  Sawyer,  385. 
McCouii'e  V.  Sawyer,  207. 
McCormick  v.   Malin,    144,     183,    187, 

297,  389. 

—  V.  McMurtrie,  133. 

—  V.  Wheeler,  259. 
M'Coun  V.  Delaney,  65,  334. 
McCoy  V.  Artcher,  105. 
McCraw  v.  Davis,  146. 
McCrea  v.  Leonstreth,  66. 
McCulloch  V.  Scott,  300. 
McDanicl  v.  Moorman,  144. 
McDonald  v.  Fitliian,  172. 

—  V.  Trafton,  73,  74. 
BTDonald  v.  Lindiill,  131. 

—  V.  Neilson,  306,  391. 
McElderry  v.  Shipley,  414. 
McFerran  v.  Taylor,  61. 


M'Ferran  v.  Taylor,  408. 
McGinn  v.  Shaeffer,  157- 
McGuire  v.  Callahan,  52. 
Mcintosh  V.  Smith,  1 19. 
McKay  v.  Simpson.  419. 
M'Kelvey  v.  Truby,  132. 
McKelway  v.  Cook,  405. 
McKinley  v.  Irvine,  155,172. 
McKinney  v.  Fort,  101. 

—  f.  Pinekard,  190. 
McKnightf.  Kellett,  328. 

—  V.  Taylor,  303. 
McLaughlin  v.  Bank  of  Potomac,  208. 
McLean  v.  Parton,  303. 
McMeclien  v.  Griffing,  246. 
McMiilen  V.  McMillin,  419. 
McMurray  v.  St.  Louis  &c.  Co.,  B91 
McXaughton  v.  Partridge,  299,  420. 
M'^'eely  v.  Rucker,  229. 

McNeil  V.  Turner,  344. 

McPherson  v.  Walters,  129. 

McRimmers  v.  Martin,. 241. 

McVickar  v.  Wolcott,  447. 

McWliorter  v.  McM.ihon,  357. 

Md.  Fire  Ins.  Co.  v.  D.drymple,  155,  161. 

Meanor  v.  Hamilton,  Kil. 

Mechanics'  Bank  of  Alexandria  i;.  Setoa, 

262. 
Meek  o.  Perry,  177. 
Meeker  v.  York,  172. 
Mellick  V.  Robertson,  397. 
Merchauls'  Nat'l   Baidv   v.   Nat'l  Eagle 
Bank,  415. 

—  Bank  v.  Mclntyre,  405. 
Merriweather  v.  Ileiran,  97. 
Merry  v.  Bostwick,  2<iO. 
Michael  v.  Michael,  387. 

Michoud  V.  Girod,  150,  158,  298,  304. 

306.  308,  309,  347. 
Middleton,  ifec.  Bank  v.  Dubuque,  262. 
Miles  V.  Barry,  310. 

—  V.  Stevens,  405,  416. 
Miller  v.  Bradford,  265. 

—  V.  Colton,  359. 

—  V.  Coukling,  212. 

—  V.  FraleJ^  258. 

—  V.  Lockwood,  213, 

—  V.  Mclntyre,  304. 

—  V.  Pancoast,  211. 

—  V.  Piatt,  129. 

—  V.  Thompson,  207. 
Miller  v.  Tolleson,  389. 
Mills  V.  Camp,  210. 

—  V.  Ervin,  164,  165,  344. 

—  V.  Mills,  164. 

—  V.  Warner,  210. 
Miner  v.  Granger,  107. 

—  V.  Medhury,  79. 
Minturn  v.  Seymour,  420. 
Mississippi  Union  Bank  v.  Wilkinson,  77 
Mitchell  V.  Beal,  196,  197. 

—  V.  Denson,  439,  441. 

—  V.  Mims,  111. 


34 


TABLE    OF    AMEEICAN  CASES  CITED. 


Mitchell  V.  Moore,  154. 

—  V.  Pickett.  319, 

—  V.  Thompson,  310. 

—  V.  AVorden.  108,  109. 

—  V.  Zimmerman,  61. 
Mixer  v.  Coburn,  106. 
Moale  V.  Buclianan,  418. 
Mockbee  v.  Gardner,  105. 
Moffat  V.  Winslow,  299. 
Moncrieff  v.  Goldsborough,  225. 
Monell  V.  Golden,  86. 
Montville  v.  Haughton,  420. 
Moore  v.  Auditor.  264. 

—  V.  Blauvelt,  186. 

—  V.  Bracken,  169. 

—  V.  Clay,  312,  370. 

—  V.  Green,  367. 

—  V.  Reed.  299. 

—  V.  Mandelbaum,  172,  173,  174. 

—  V.  Moore,  174. 

—  V.  TurbeYille,  78. 
Mordecai  v.  Tankersley,  328. 
More  V.  Sraedbiirg,  335. 
Morehead  v.  Hunt,  225. 
Moreland  v.  Atcbinson,  335,  399. 

—  V.  Lemastar,  234,  244. 
Morey  v.  Forsyth.  198. 
Morgan  v.  Bliss,  94,  325. 

—  V.  Morgan,  244. 

—  V.  Republic,  211. 

—  V.  Snapp,  74. 

—  V.  Spanglcr,  128,  398. 
Morland  f.  bliss,  131. 

Morris  Canal  Co.  v.  Emmett,  73. 

—  V.  Moore,  128. 

—  V.  Philiber,  188. 

—  V.  Ross,  448. 

—  V.  Terrell,  241. 
Morrison  v.  McLeod,  147. 
Mortimer  v.  Pritcbard,  399. 
Morton  v.  tJogdon,  128. 

—  V.  Robards,  266. 

—  V.  Scull.  112,  325. 
Mosby  V.  Wall,  418,  421. 
Moseley  v.  Buck,  173,  345. 

—  V.  Moseley,  231. 
Moss  V.  Davidson,  384. 

—  V.  Riddle,  368. 
Motley  V.  Motley,  173. 
Mott  V.  Harrington,  164. 
Moultrie  v.  Jennings,  228. 
Mulford  V.  ]\Iiiiels,  161. 
Mullen  V.  Wilson,  207. 
Mundorf  v.  Wickersham,  11 L 
Munson  v.  Ilallowell,  310. 

—  V.  Gairdner,  325. 
Murray  v.  Ballou,  264,  370. 

—  V.  llhx^,  212. 

_      V.  Yanelerbilt,  156. 
Myers  v.  Myers,  154. 

—  V.  Peck,  316. 

—  V.  Rives,  178. 
Myer's  Appeal,  172. 


Nabours  v.  Cocke,  404. 

Nance  v.  Thompson,  447. 
Nantz  V.  McPherson,  370. 
Napier  v.  Elam,  103,  322,  386. 
Narcissa  v.  Wathan,  78,  158. 
National  Fire  Ins.  Co.  v.  Crane,  420. 

—  Bank  v.  Norton,  262. 
Neal  V.  Williams,  313. 
Neale  v.  Haythrop,  241. 
Neely  v.  Anderson,  190. 
Nellis  V.  Clark,  374. 

Nelson  v.  Carrington,  299,  806. 
Nesbit  V.  Lockman.  170. 

—    V.  Diffbv,  212. 
Nevin  v.  Belknap,  128. 
Nevius  V.  Dunlnp,  410. 
Newcomer  v.  Kline,  419,  420, 
Newman  v.  Chapman,  266. 

—  V.  Edwards,  ]  32. 

—  V.  Meek,  187,  188,  22.5. 

New  Orleans  R.  H.  Co.  v.  Williams,  115, 
Nichols  V.  Michaels,  328. 

—  V.  Pinner,  108. 

—  V.  Reynolds,  264. 
Niles  V.  Anderson,  44,  355,  368. 
Niolen  v.  Douglass,  212. 
Noble  V.  Googins,  65. 
Noonan  v.  Lee,  334. 

North  Bait.  Building  Association  v.  Cald- 
well, 158. 
North  V.  Belden,  201. 
Northrop  v.  Graves,  402, 
Norton  v.  Hooten,  105. 

—  V.  Young,  327, 
Nowlan  v.  Cain,  78. 
Nutt  n.  Nutt,  448. 
N.Y.Bowerylns.  Co.  v.  N.  Y.  Ins.  Co..ll9. 

Obert  V.  Obert,  306. 

O'Brien  v.  Coulter,  46,  199. 

Ochler  V.  Walker,  311, 

Odiin  V.  Gove.  133. 

Ohio  Life  Ins.  Co.  v.  Ledyard,  266. 

Oliver  v.  Piatt,  155,  238,  241.  308. 

Ormsby  v.  Bakenell,  447, 

Osborn  v.  Carr,  323. 

Osborne  v.  Moss.  375. 

—  V.  Phelps,  418. 
Osgood  V.  Franklin,  187. 

—  V.  Lewis,  106. 
Oswold  V.  McGehee,  61. 
Overton  v.  Phelan,  107. 
Owing's  Case,  144,  146,  344,  387. 
Owingsw.  Juit,  312. 

Padget  V.  LawTcnce,  319. 
Page  V.  Bent,  56. 

—  V.  Booth,  304. 

—  V.  Ford,  107, 
Paige  V.  Nagiee,  154. 
Painter  v.  Henderson,  164. 
Palmer  v.  Cross,  140. 
Parham  v.  Parham   418. 

1       —      V.  Randolph,  81. 


TABLE   OF  AMERICA^?^  CASES  CITED. 


35 


P.ii'i-h  V.  ]\Turplii-ee,  206. 
rarker  v.  Ildlmes,  346. 
Parkham  v.  JMcCrary,  311. 

—  V.  Kandolph,  335. 
Parkhnrst  v.  Alexander,  172. 
Parkinson  v.  Hanna,  201. 
Parknian  v.  Welch,  207. 
Parks  V.  Willard,  266. 
Parrett  v.  Sliaiibhut,  204. 
Parson  v.  Hughes,  298. 
Partels  v.  Harris,  202. 
Patten  v.  Gurney,  324. 

—  V.  PloUidaysburg,  244. 

—  V.  Moore,  248. 
Patton  V.  Taylor,  334. 

—  V.  McClare,  133. 
Payne  v.  Rodden,  105. 

—  V.  Smith,  82. 
Peabody  v.  Fenton,  320. 
Peacock  v.  Black,  304. 
Pearce  v.  Blaekwell,  102. 

—  V.  Chastain,  391. 
Pearrett  v.  Shawbhut,  95. 
PearsoU  v.  Chapin,  49,  297,  327 
Pearson  v.  Daniel,  237. 

Pease  v.  Sabin,  107. 
Peay  v.  Sublet,  197. 
Peck  V.  Baldwin,  50. 

—  V.  Brewer,  330. 

—  V.  Land,  200. 
?edeu8  V.  Owens,  66. 
peers  v.  Davis,  325. 
Pemberton  v.  Staples,  368. 
Pendergast  v.  Reed,  88. 
Pendkton  v.  Galloway,  309,  366 
Pequeno  v.  Taylor,  109,  328. 
Persons  i).  Jones,  310. 
PerijEjue  v.  Wood,  44. 

Perins  v.  Dunn,  200. 
Perkins  v.  Cartmell,  304. 

—  V.  McGavock,  96,  91 

—  V.  Rice,  77,  85. 

—  V.  Webster,  66. 
Perkins  v.  Wright,  357. 
Perry  v.  Crary,  311. 
Petere  v.  Foster,  1 27. 
Peters  v.  Florence,  397. 

—  V.  Goodrich,  236,  264. 

—  V.  Newkirk,  292. 
Peterson  v.  Grover,  419. 
Petrie  v.  Wright,  384. 
Petters  v.  Smith,  201,  299. 
Pettes  Bank  v.  Whitehall,  397 
Pettibone  v.  Stevens,  200,  383. 
Pettigrew  v.  Chellis,  325. 
Petty  V.  Petty,  220. 

Peyton  v.  Butler,  84,  347. 

—  V.  Stith,  304. 
Phalon  V.  Clark,  43,  310,  374. 
Phelan  v.  Crosby,  327. 
Phillips  w.  Moore,  147. 
Phelps  V.  Overton,  165. 
Phettiplace  v.  Sayles,  96,  210,  216, 


Phippen  v.  Ptickrpy,  226. 
Piatt  V.  Vatlier,  303. 
Picard  v.  McCormick,  18, 
Pickett  V.  Barron,  319. 
Pierce  v.  Fan  nee,  316. 

—  7).  Jackson,  212. 

—  V.  Kesbitt,  155. 

—  V.  Perkins.  291. 

—  V.  Wilson,  329. 
Pierpont  v.  Graham,  212. 
Pike  V.  Wictinii',  1()9. 
Pillow  V.  Shannon,  318. 
Pillsbury  v.  Pillsbury,  172. 
Pinkhiim  v.  Gear,  402. 
Pinnco  v.  Higgins,  215. 
Pinson  v.  Ivey,  308,  321. 
Pintardv.  Martin,  307,  335,  336. 
Pitney  v.  Leonard,  236,  238. 
Pitts  i;.  Cottingham,  84,  86. 
Pixley  t'.  Bennett,  198. 
Place  V.  Langworth,  213. 
Planters'  Bank  v.  Henderson,  209. 

—      and  Merchants'  Bank  v.  Willis, 
210. 
Plaster  v.  Burger,  225. 
Piatt  V.  Oliver,  224. 
Pleasants  v.  Ross,  447. 
Plitt  ex-pnrte,  164. 
Poague  V.  Boyce,  45,  200,  209. 
Poillon  V.  Martin,  171,  321. 
Pollard  V.  Rogers,  103,  299,  300,  333. 
Pollock  V.  Wilson,  65. 
Poor  V.  Price,  44,  50. 
Poore  V.  Woodl)urn,  329. 
Pope  V.  Andrews,  196,  385. 
Porter  v.  Bank  of  Rutland,  262. 

—  V.  Sevej%  266. 
Portland  Bank  v.  Stacey,  211. 
Potts  V.  Blaekwell,  231. 
■Poulet  V.  Johnson,  240. 
Powell  V.  Bradlee,  108,  33L 

—  V.  Clark,  66. 

—  V.  Jefferies,  319. 
Pratt  V.  Carroll,  357. 

—  V.  Philbrook,  96. 
Prentice  v.  Achorn,  147. 
Prentiss  v.  Russ,  94. 
Preston  I'.  Crofut,  313. 

—  v.  Mann,  128,  133. 
Prevo  V.  Walters,  312. 
Prevost  V.  Gratz,  304. 
Prewitt  V.  Copwood,  377. 

—  V.  Graves,  336. 
Price  V.  Grand  Ilapids  &  Ind.  R.  R.  Co., 

163. 
—   V.  Sykes,  198. 
Pries  V.  Evans,  159. 
Pringle  v.  Philips,  237. 

—  V.  Samuel,  66,  82,  83. 
Prior  V.  Kinney,  196. 
Proctor  V.  Thrall,  397. 
Prout  V.  Roberts,  103,  335. 

384.    Putnam  v.  Dutch,  211. 


36 


TABLE  OF  AMERICAN  CASES  CITED. 


Quarles  v.  Lacey,  157. 
Quesnel  v.  "Woociliof,  65. 
Quick  V.  Stuyvesaut,  358. 

Radcliflfe  v.  Wightman,  44Y. 
Railroad  Co.  v.  Kowe,  299. 
Rainsford  v.  Kainsford,  297. 
Eamsaj'  v.  Joyce,  217. 
Ramsdell  v.  Edgaiton,  215. 
Rand  V.  Redington,  291. 
Randall  v.  Howard,  374. 

—  V.  rinl.ijjs,  198, 
Randolph  v.  Doss,  198, 

—  V.  Ware,  304. 
Rankin  v.  HoUoway,  211. 

—  V.  Lnder,  212. 
Rapalie  v.  Jloieworthy,  178. 
Ratclifife  v.  Sani;ston,  319. 
Raugley  v.  Spring,  131. 
Rawdon  v.  Blatchford,  94. 
Rawley  v.  ^^'oodl•llff,  94. 
Raymond  v.  ^imonson,  310l 
Read  v.  Cramer,  65,  413. 

—  V.  i^later,  313. 

—  V.  Wari.er,  172. 
Reading  v.  Pric^,  101, 
Reardon  v.  Seavj',  306. 
Reed  v.  Barber,  105. 

—  V.  Cole,  264. 

—  V.  Jewett,  211. 

—  V.  Noxon,  2iiO,  385. 
Reed's  Appeal,  258. 
Reese  v.  Wj-man,  93.  421. 
Reid  V.  Stanley,  167. 
Reiniek  v.  Smith,  391. 
Reinieker  v.  Smith,  147,  35Y. 
Reservoir  Co.  v.  Chase,  399. 
Reynolds  v.  Vance,  220, 

—  V.  Vilas,  220. 
Rice  V.  Clighorn,  155. 

—  V.  McDonald,  239. 

—  V.  Riuvlings,  357, 

—  V.  White,  310. 
Richards  v.  Fridley  Wright,  60 

—  V.  Hunt,  216, 
Richardson  v.  Adams,  275, 

—  V.  Bliglit,  421, 

—  V.  Johnson,  106. 

—  V.  Linney,  178. 

—  V.  Spencer,  157. 
Richmond  v.  Curdup,  196. 
Ricker  v.  Ham,  227,  231. 
Ridgway  v.  Underwood,  230 
Rieuier  v.  Cantillon,  419. 
Rigdon  V.  M:ntin,  292. 
Ringgold  V.  Ringgold,  158. 
Ringo  V.  Binns,  176. 
Ringrow  v.  Warder,  132. 
Ripi)y  V.  Grant,  146. 
River  i'.  Plankroad  Co.,  116. 
Robbins  v.  Butler,  155. 
Roberts  v.  Anderson,  236,  313, 

—  •      V.  Stiinton,  240. 


Robinson  v.  Bates,  198. 

—  V.  Justice,  127,  138, 

—  V.  Rives,  105. 
Rodgers  v.  N  des,  107, 
Rodman  v.  Gillej',  147. 
Roe  V.  Jerome,  127. 
Rogers  v,  Atkinson,  419, 

—  V.  Jones,  241,  248,  268^ 

—  V.  Saunders,  307. 
Roosevelt  v.  Fulton,  61. 
Root  V.  French,  108. 

—  V.  Reynolds,  2001, 
Rose  V.  Mead,  224. 

—  V.  Mynatt,  165, 
Ross  V.  Houston,  258. 

—  V.  Vestner,  368. 
Roth  V.  Palmer,  328. 
Rowan  v.  Adams,  240, 
Rowley  v.  Bigelow,  108,  109. 
Rudd  V.  Jones,  447. 
Ruddick  v.  Leggatt,  310. 
Ruffner  v.  McCouuell,  410,  421. 
Rumpli  V.  Abercrombie,  333. 
Russell  V.  Branham,  90. 

—  V.  Clarke,  45.  325. 

—  V.  Kearney,  228. 

—  V.  Stinson,  198,  207. 

—  V.  Wines,  213. 
Rutherford  v.  Ruff,  144. 
Rutland  v.  Paige,  420. 
Rutledge  V.  Smith,  420. 
Rutter  V.  Barr,  241. 

—  V.  Blake,  327. 
Ryan  v.  Blunt,  447. 

Saddler  v.  Robinson,  299. 
Sanders  v.  Pepoor,  211. 
Sand  ford  i'.  Handy,  88. 
Sands  V.  Codwise,  345. 
Sands  w  Hildreth,  108,  202. 
Sanger  v.  Craiger,  264. 

—  r.  Eastwood,  228,  231. 
Salem  India  Rubber  i  o.  v.  Adams,  101 
Sallee  v.  Chandler,  157. 

Salmon  v.  Bennett,  206,  228, 
Saltonstall  v.  Gordon,  124, 
Sanborn  v.  Osgood,  327. 

—  V.  Stetson,  384. 

—  V.  Wood,  299. 
Saunders  v.  Fen  ill,  203. 

—  V.  Ilatterman,  78. 

—  V.  Turbeville,  213, 
Savage  i;.  Berrv,  419. 

—  V.  Murphy,  207,  208. 
Sawyer  v.  Crane,  265. 
Schedda  v.  Sawyer,  172. 
Schermei'horn  v.  George,  77, 
Schultz  /'.  Moore,  264, 
Schutt  V.  Large,  264. 
Schwartz?).  Wendell,  158. 
Scott  v.  Bamer,  94. 

—  V.  Duncan,  410. 

—  V,  Freeland,  177. 


TABLE  OF  AMERICAN  CASES  CITED. 


37 


Scott  V.  Gallagher,  246. 

—  V.  Hix,  105. 

—  V.  Perrin,  33*7. 

—  V.  Renick,  106. 

—  V.  "Warner,  415. 
Scran  ton  v.  Clark,  105. 
Segar  v.  Edwards,  174 
Segur  V.  Fingley,  408. 
Selden  v.  Myers,  38Y. 
Seligmau  v.  Kalkman,  108. 
Seving  v.  Gale,  216. 
Sewall  V.  Gliddon,  233, 

—  V.  Russell,  197. 
Seward  v.  Jackson,  228. 
Sexton  V.  Wheatou,  149,  206. 
Seymour  v.  Delaney,  363. 

—  V.  Freer,  308. 
Shackelford  v.  Handley.  61,  300. 

—  V.  Handy,  326,  327  337. 

Shaeffer  v.  Sleade,  55. 
Shafer  v.  Davis,  397. 
Shannon  v.  White,  311. 

—  V.  Marmaduke,  174. 
Sharman  v.  Miller.  421. 
Sharp  V.  New  York,  325. 
Shaw  V.  Barnharl,  329. 

—  V.  Levy,  228,  231,  234. 

—  V.  Stine,  74. 
Shearin  v.  Eaton,  304. 
Sheckell  v.  Hopkins,  194. 
Sliepperd  v.  Bevis,  363. 
Sheppard  v.  Turpin,  213. 

Sherman  v.  Champlain  Trans.  Co.,  105. 
Sherry  v.  Stansbury,  178. 
Sherwood  v.  Sutton,  310. 
Shields  v.  Anderson,  210. 

—  V.  Bogliolo,  345. 
Shinnis  v.  Coil,  292. 
Shipp  V.  Swan,  300. 
Shirras  v.  Craig,  201,  266. 
Short  V.  Stevenson,  182. 
Shotwell  V.  Murray,  397. 
Simeon  v.  Wilson,  146. 
Simerson  v.  Bank  of  Decatur,  211. 
Simmons  v.  North,  419,  420. 

—      V.  Vulcan  Oil  Co.,  182. 
Simpson  v.  Dall,  196. 

—  V.  Graves,  202,  203. 

—  V.  Mitchell,  207. 
Sims  V.  Steele,  374. 
Skcel  ('.  Spraker,  240. 
Skilhnan  v.  Teeple,  400. 
Skinner  I).  Strouse,  131. 
Skinning  v.  Neufville,  132. 
SkipNvith  V.  Cunningham,  212. 
Skirving  v.  Neufville,  131. 
Skrine  v.  Simmons,  367. 
Slack  V.  McLagau,  358. 
Slade  V.  Van  Vechten,  154. 
State  V.  McGowen,  308. 
Slater  v.  Maxwell,  187,  224. 
Sloo  V.  Law,  156. 
Slothower  v.  Gordon,  65. 


Smith  V.  Allen,  418. 

—  V.  Babcock,  76,  367. 

—  V.  Bishop,  310. 

—  V.  Beatty,  97,  146. 

—  V.  Brotherline,  168. 

—  V.  Click,  94. 

—  V.  Dall,  2-16. 

—  V.  Elliott,  377. 

—  V.  Evans,  66. 

—  V.  Fly,  65,  311. 

—  V.  Greenlee,  225. 

—  V.  Greer,  203. 

—  V.  Hall,  266. 

—  V.  Lansing,  173,  344. 

—  V.  McDougal,  397. 

—  V.  Mclver,  44. 

—  V.  Mitchell,  61,  93,  326. 

—  V.  Oliver,  258. 

—  V.  Onion,  201. 

—  V.  Owens,  215. 

—  V.  Prince,  264. 

—  V.  Richards,  61,  73,  79,  102. 

—  V.  Robertson,  417. 

—  V.  Shane,  240,  245. 

—  V.  Smith,  110,  196,  220,  327,  448. 

—  V.  Stone,  215. 

—  li.  Talbot,  311. 

—  V.  Thompson,  165,  169,  306. 

—  V.  Yule,  246. 
Smolson  &  Co.  v.  Franklin,  95. 
SmuU  V.  Jones,  225. 
Snelgrove  v.  Snelarove,  132,  369. 
Snelson  &  Co.  v.  Franklin,  103. 
Snyder  v.  Warbasse,  449. 
Somerville  v.  Horton,  207. 
SouthalU.  Clark,  178. 
Spalding  v.  Fisher,  1 97. 

—  V.  Hedges,  79. 

—  V.  Vandercrook,  32Y. 
Sparks  v.  White,  400. 
Speise  v.  McCoy,  228. 
Spence  v.  Buren,  366. 

—  V.  Whitaker,  78,  161. 
Spencer  ?).  Spencer,  391. 
Spindlerv.  Atkinson,  154. 
Splaun  V.  Martin,  202. 
Spoftord  V.  Weston,  2(56. 
Sponabler  v.  Snyder,  258. 
Sprague  v.  Duel,  146. 
Springs  v.  Harven,  420. 
Stadtier  v.  Wood.  210. 
Stafford  v.  Ballou,  236. 
Staines  v.  Shores,  225,  325. 
Stamps  V.  Bracy,  387. 

St.  Andrew's  Church  v.  Tomkins,  323. 
Stanton  v.  Green,  375. 
Stark  V.  Littlepage,  375. 
Starr  v.  Bennett,  90. 

—  V.  Vandersheyden,  164. 
State  V.  Paup,  397. 

—  V.  Reed,  295. 

—  V.  Reigart,  397. 
Stebbins  v.  Eddy,  66,  88,  367. 


38 


TABLE  OF  AMEEICAIif  CASES  CITED. 


Stedwell  v.  Anderson,  419. 
Steele  v.  Ellmaker,  226. 

—  V.  Kinkle,  95,  103,  309. 

—  V.  Worthington,  186,  188,  3*74, 
Steers  v.  Hoagland,  386. 

Step  V.  Alkire,  336. 
Sterns  v.  I'age,  367. 
Sterry  v.  Arden,  229. 
Stevens  v.  Ilvde,  52,  328. 

—  V.  Morse,  231. 

—  V.  f^mith,  106. 
Stewart  v.  Rogers,  206. 

—  V.  Stewart,  184,  220. 
Stickney  v.  Bosnian,  375. 
Stiles  V.  White,  325,  381. 
Stockton  V.  Ford,  169. 
Stoddard  v.  Hart,  414. 
Stone  V.  Denny,  55,  326. 

—  V.  Gover,  329. 

—  V.  Ramsay,  335. 
Stoolfoos  V.  Jenkins,  148. 
Storer  v.  Harrington,  201. 
Storrs  V.  Barker,  131,  132,  397. 
Stovall  V.  Northern  Bank  of  Mississippi, 

368. 
Stover  V.  Farmers  &  Merchants  Bank,21 1. 

—  V.  Herrington,  202. 
Strang  v.  Beach,  419. 
Street  v.  Dow,  299. 
Stribling  v.  Ross,  197. 
Strong  V.  Barnes,  105. 

—  V.  Ellsworth,  132. 

—  V.  Peters,  78. 
Stuart  V.  Luddington,  127. 
Stnbblefield  v.  Patterson,  18Y. 
Stuyvesant  v.  Hall,  264. 
Summers  v.  Bebb,  197. 

—  V.  Roos,  213. 
Sumner  v  Rhodes,  264. 
Surmberger  v.  Webster,  246. 
Sutphen  v.  Fowler,  391. 
Swain  v.  Ferine,  220. 

—  V.  Seamens,  129. 
Swayze  v.  Burk,  161. 
Switzer  v.  Skiles,  225. 

Talbot  >i.  Subree,  345. 
Tarbell  v.  Bowman,  65. 
Tate  V.  Connor,  308. 

—  V.  Tate,  207,  220,  229,  230,  810. 

—  V.  Leggatt,  227,  228. 

—  V.  Wliitnej',  184. 
Taylor  v.  B  nham,  308. 

—  V.  Ely,  128. 

—  V.  Fleet,  73,  386. 

—  V.  Frost,  325. 

—  V.  Heriot,  266. 

—  V.  Knox,  173. 

—  t).  Mills,  211. 

—  V.  Nicholson,  447. 

—  V.  Sands,  107. 

—  V.  Taylor,  180. 

—  V.  Zipp,  128. 


Taymon  v.  Mitchell,  300,  333. 
Teackle  i'.  Bailey,  173,  384. 
Teasdale  v.  Atkinson,  231,  233. 
Ten  Eick  v.  Simpson,  131. 
Terry  v.  Belcher,  211. 

—  V.  Buck,  102,  104. 
Thayer  v.  Thayer,  220. 

—  i>.  Turner,  327. 
The  Distilled  Spirits,  259. 
Thomas  v.  Goodwin,  200. 

—  V.  Grand  Gulf  Bank,  264, 

—  V.  McCormick,  418. 

—  V.  Perry,  65. 

—  V.  Shepperd,  144. 
Thompson  Scale  Manuf.Co.v.Osgood  '10. 
Thompson  v.  Elanchard,  211. 

—  V.  Davis,  225. 

—  V.  Dougherty,  207. 

—  V.  Jack'son,  366,  416. 

—  V.  Lee,  194. 

—  V.  Sanborn,  131. 

—  V.  Sanders,  389. 

—  V.  Sod,  358. 

—  V.  Thomjison,  198. 
Thornton  v.  Davenport,  201. 
Thorp  V.  McCullum,  157. 
Thurston  v.  Blanchard,  328. 
Tibbs  V.  Timberlake,  300. 
Tickner  v.  Wishall,  197. 
Ticknor  v.  Wisnall,  213. 

Tilt  V.  Walker,  201. 
Tilghman  v.  We.st,  132. 
Tilton  V.  Hunter,  264. 

—  V.  Nelson,  132. 

—  V.  Tilton,  419,  420. 
Todd  V.  Benedict,  264. 

—    V.  Grove,  190. 
Tomlin  v.  Den,  131. 
Tomlinson  v.  Savage,  335. 
Tompkins  v.  Pen  ell,  316. 

—  V.  Wheeler,  212. 
Tongue  v.  Nutwell,  128,  131,  132. 
Torrance  v.  Lamsden,  447. 

Torrey  v.  Bank  of  New  Orleans,  173,  174. 

Toule  V.  Hoit,  210. 

Towle  V.  Leavitt,  225. 

Town  V.  Keedham,  129,  389. 

Townsend  v.  Coales,  91. 

Tracy  v.  Sackett,  144. 

Trenton  Banking  Co.  v.  Woodruflf,  50. 

Trexter  v.  Miller,  448. 

Trigg  V.  Read,  94,   124,  364,  397,  400. 

408,  412. 
Triplet  v.  Bailey,  421. 
Tripp  V.  Childs,  196. 
Trotter  v.  Watson,  20a 
Troup  V.  Wood,  224. 
Troupe  v.  Smith,  310. 
Truesdale  v.  Ford,  248. 
Trust  V.  Delaplaine,  225. 
Tryon  v.  Whitmarsh,  325. 
Tucker  v.  Andrews,  217. 

—  V.  Maddin,  421. 


TABLE  OF  AMERICAN  CASES  CITED. 


39 


Turner  v.  Cheescraan,  186. 

—  V.  Huggins,  101, 

—  V.  Navigation  Co.  82. 
Tyler  v.  Black,  345. 

—  V.  Gardner,  186. 
Tyson  v.  Hardesty,  65. 

—  V.  Passmore,  358. 

Ulmer  v.  Hills.  211. 

Union  Canal  Co.  v.  Lloyd,  262. 

United  States  Bank  v.  Hath,  212. 

—  Ins.  Co.  V.  Shriver,  263. 

—  V.  Hoe,  197,  210. 

—  V.  Monroe,  421,  454. 
Upton  V.  Vail,  326. 

Valentine  v.  Stewart,  163. 

Van  Cliff  v.  Fleet,  108. 

Van  Cortland  v.  Underhill,  291,  447. 

Vanderpoel  v.  Kearaey,  176. 

Van  Dorn  v.  Robinson,  241. 

Van  Epps  v.  Van  Epps,  154. 

Vannickle  v.  Malta,  177. 

Van  Wyck  v.  Seward,  196,  198,  206. 

Varickv.  Briggs,  316. 

Varlick  v.  Edwards,  304. 

Vaughan  v.  Tracey,  245. 

Veasey  v.  Doton,  75. 

Veazie  V.  Williams,   112,  173.  187,226, 

309,  334,  337,  344,  366. 
Verplank  v.  Sterry,  227,  232, 
Vick  V.  Keys,  211. 
Villard  v.  Roberts,  264. 
Villines  v.  Norfleet,  157. 
Violett  V.  Violett,  202. 
Voorhees  v.  De  Meyer,  417. 
Voorbies  v.  Earl,  52. 
Vose  V.  Holcomb,  212. 

Wade  V.  Green,  196,  308. 

—  V.   Pettebone,  169,  303. 

—  V.  Sberman,  329. 
Wagner  v.  Baird,  306. 

—  t).  Bird,  311. 
Wailes  v.  Cooper,  241. 
Wakeman  v  Grover,  212. 
Walden  v.  Louisiana  Ins.  Co.,  119. 
Walker  v.  Ayres,  258. 

—  V.  City  Council,  292, 

—  V.  Collins,  f,43. 

—  V.  Gilbert,  244. 

—  V.  McConnico,  375. 

—  V.  Walker,  177. 
Wall  V.  Arrington,  419. 
Wallace  v.  Barlow,  104. 

—  V.  Craps,  266. 

Waller  v.  Armistead,  177,  178,  179. 
Wallis  V.  Loubat,  164. 
Walradt  v.  Brown,  198. 
Walter  v.  Cralle,  231. 

—  V.  Wimer.  213. 
Walton  V.  Cody,  107. 

—  V.  Wortliington,  146. 
Wamburzee  v.  Kennedy,  46.  309.  312. 


Waples  V.  Waples,  288. 
Warb  V.  Webber,  427. 
Warburton  v.  Aiken,  374. 
Ward  V.  Lowry,  213. 

—  V.  Packard,  103. 

—  V.  Reynolds,  327. 

—  V.  Trotter,  2()0. 
Wardell  v.  Fosdick,  104,  326. 
Warner  v.  Daniels,  188,  407. 

—  V.  Norton,  211. 
Warnock  v.  Wrightman,  266. 
Warren  v.  Hall,  375. 
Washburn  v.  Merrills,  416,  418. 
Washington  Bank  v.  Lewis,  263. 
Wasson  v.  Bovet,  327. 

—  V.  English,  157. 
Watchman  v.  Ware,  212. 
Waters  v.  Lemmon,  344. 
Watkins  v.  Wallace,  385, 
Watson  V.  Cox,  42n. 

—  V.  McLaren,  127. 

—  V.  Wells,  262,  419. 

—  V.  Williams,  211. 
Way  v.  Cutting,  310. 

—  V.  Lyon,  266. 
Weatherl'ord  v.  Fishback,  324. 

—  V.  Tate,  304. 

Weaver   v.  Carter,  06,  408. 

—  V.  Shrj-ork,  425. 
Webb  V.  White,  109. 
Webster  v.  Rtid,  293. 
Weedon  v.  Hawes,  197,  345. 
Weeks  v.  Burton,  325. 

—  V.  Robie,  327. 
Weimar  t-.  Clement,  327,  330. 
Weir  V.  Hale,  197. 

Welford  v.  Chancellor,  172,  344, 
Well  0.  Silverston,  386. 

—  V.  Treadwell,  228, 
Wells  V.  Morrow,  318. 

—  V.  Pierce,  132. 
Wemple  v.  Stewart,  410. 
Wendell  v.  Van  Renssler,  130,  168, 
West  V.  Emery,  325. 

—  V.  Tilghman,  129. 
Wcstall  V.  Austin,  335. 

Western  R.  R.  Co.  v.  Babcock,  358,  4(»7 
Westevelt  v.  Matheson,  189, 
Whaley  v.  Ellott,  314,  405. 
Wlu'adon  v.  Olds,  405. 
Wheatley  v.  Martin,  447. 
Wheaton  v.  Wheaton,  402. 
Wheeler  v.  Sage,  182,  374. 

—  V.  Smith,  404. 
Wheelock  v.  Whcek-r,  57. 
Wlielan  v.  Whelan,  144. 
Whilt  V.  Parker,   177. 
Whipple  V.  McCliire,  144, 
White  II.  Cox,  147. 

—  V.  Den  man  367. 

—  V.  Dodds,  328. 

—  V.  Flora,  187,  191, 

—  V.  Graves,  201,  345. 


40 


TABLE  OF  AMERICAN  CASES  CITED. 


White  V.  Jones,  44. 

—  V.  Meday,  391. 

—  V.  Sawyer,  381. 

—  V.  Seaver,  77. 

—  V.  Trotter,  385. 

—  V.  White,  375. 

—  V.  Williams,  420. 

—  V.  Wilson,  420. 
Whiteford  v.  McLeod,  363. 
Whitehorn  v.  Hines,  146. 
Whitesides  v.  Greenlee,  147. 
Whiting  V.  Johnson.  199. 
Whitney  v.  Allaire,  329,  330. 
Whittaker  v.  Williams,  132, 
Whittier  V.  Vose,  329. 
Whittin-lon  v.  Wright,  131,  148. 
Wicker  v.  Creas,  66. 

Wickes  V.  Clarke,  203,  228. 
Wickliffe  V.  Lee,  334. 
Wigand  V.  Sichel,  328. 
Wigglesworth  v.  Steers,  147. 
Wild  V.  Kees,  189. 
Wiley  V.  Fitzpatrick,  405. 
Wilks  V.  Fitzpatrick,  150. 
Willeford  v.  Galbraith,  66. 
Williams  v.  Champion,  400. 

—  V.  First  Presbyterian  Society, 

367. 

—  V.  Fowler,  295. 

—  V.  Hollo  way,  318. 

—  V.  Jones,  201. 

—  V.  Marshall,  155. 

—  V.  Powell,  178. 

—  V.  Reed.  163,  297. 

—  V.  Rogers,  345. 
_       V.  Shafford,  415. 

—  V.  Slaughter,  106. 

—  V.  Sprigg,  248. 

—  t;.  Stoughton,  106. 

—  V.  Sturtevant,  307. 

—  V.  Wilson,  345. 

—  V.  Wood,  326. 
Williamson  v.  Brown,  236,  238. 

—  V.  Raney,  104,  356,  367. 

—  V.  Williamson,  295. 
Willink  V.  Vandewear,  93. 
Willis  V.  Henderson,  418. 

~  V.  Vallette,  258. 
Willman's  Appeal,  179. 
Wilson  V.  Cheshire,  196. 

—  V.  Fovet,  328. 

—  V.  Hillyer,  370. 

—  V.  Houser,  206 

—  V.  Laffoor,  384. 

—  V.  McCullough,  239. 

—  V.  Russell.  197. 

—  V.  Statfi,  163. 
—    V.  Troup,  1 54. 

—  V.  Wall,  293. 


Wilson  V.  Watts,    144,    146,    ISa.   2^1. 

388,  414. 
Winchester  v.  Charter,  207. 
Winebrenner  v.  Wersiger,  209. 
Wingate  v.  King,  299. 
Winship  v.  Jcwett,  447. 
Winston  v.  Gwathmey,  73,  4^6. 
Wintermute  v.  Snyder,  186,  397  ^00. 
Wintz  V.  Morrison,  101. 
Wiser  v.  Blackley,  427. 
Wiserall  v.  Hall,  358. 
Wiss  V.  Tripp,  197. 
Withers  v.  Greene,  327. 
Witters.  Ilightower,  244. 
Wolf  V.  Luvster,  225. 
Wood  V.  Hall,  225. 

—  V.  Hudson.  173. 

—  V.  Mann,  318. 

—  V.  McLellan,  133. 

—  V,  Patterson,  407. 

—  V.  White,  449. 
Wooden  v.  Haviland,  419. 
Woodman  v.  Bodfish,  198,  231. 

—        V.  Freeman,  47,  340. 
Woodruflf  V.  Cook,  370,  371. 
Woods  V.  North,  335. 
Woodworth  v.  Paige,  239. 
Wooster  v.  Sherwood,  315. 
Wooten  V.  Hinkle,  324. 
Worden  v.  Williams,  258. 
Worhmd  v.  Kimberlin,  201. 
Wormack  v.  Rogers,  190. 
Wormley  v.  Wormley,  157,  241,  31& 
Wright  V.  Arnold,  178. 

—  V.  Brandis,  200. 

—  V.  Delafield,  420. 

—  V.  Henderson,  207. 

—  V.  Stannard,  187. 
_    V.  Wilson,  187. 

—  V.  Wood,  246. 
Wyatt  V.  A5'res,  374. 
Wyche  v.  Green,  413,  414. 

Yeates  v.  Prior,  74. 
Yoder  v.  Swope,  234. 
Young  V.  Bum  pass,  94,  95 

—  V.  Covell,  325,  326- 

—  V.  Craig,  65,  66. 

—  V.  Frost,  364. 

—  8.  Hall,  324,  325. 

—  V.  Harris,  79,  335. 

—  V.  McClure,  210. 

—  V.  Hopkins,  103. 

—  V.  Stevens,  146. 

—  j;  White,  206. 

Zabriska  v.  Smith,  108. 
Zehner  v.  Kipler,  32B. 


FRAUD  AND  MISTAKE. 


THE 

PRINCIPLES  AND  PRACTICE  OF  EQUITY 


IN  CASES  OF 


FRAUD  AND  MISTAKE. 


CHAPTER  I. 

FRAUD. 


SECTION   I.— GENERAL   CONSIDERATIONS. 

The  first  province  of  a  court  of  equity  being  to  enforce 
truth  in  the  dealings  of  men,  the  prevention  and  correction 
of  fraud  is  part  of  the  original  and  proper  office  of  the  court.* 

It  is  not  easy  to  give  a  definition  of  what  constitutes  fraud 
in  the  extensive  signification  in  which  that  term  is  understood 
by  a  court  of  equity.^  *  Courts  of  equity  have  always  avoided 
hampering  themselves  by  defining  or  laying  down,  as  a  gen- 

'  Warden    v.   Jones,   23  Beav.  493  ;  '  Green  v.  Nixon,  23  Beav.  530 ;  Rey- 

Green  v.  Nixon,  ib.  530  ;    Ayre's  Case,       nell  v.  Sprye,  1  D.  M.   &  G.  691 ;    per 
25  Beav.  528.  Lord  Cranwortli. 


*  By  tlie  term  fraud,  the  legal  intent  and  effect  of  the  act  complained 
of  is  meant.  An  illegal  act  prejudicial  to  the  rights  of  others,  is  a  fraud 
upon  such  rights,  although  the  parties  may  deny  all  intention  of  com- 
mitting a  fraud.     Kirby  v.  Ingersoll,  1  Harring.  Ch.  172. 

The  mere  non-compliance  with  the  terms  of  a  contract,  in  not  paying 
the  stipulated  consideration,  is  not  a  fraud.  Farrar  v.  Bridges,  3  Humph. 
566. 

4  41 


FRAUD. 

.ral  proposition,  what  shall  be  held  to  constitute  fraud.' 
Fraud  is  so  various  in  form  and  color  that  it  is  difficult,  if  not 
impossible,  to  confine  it  within  the  limits  of  any  precise 
definition.  The  fertility  of  man's  invention  in  devising  new 
schemes  of  fraud  is  so  great,  that  courts  of  equity  have  de- 
clined the  hopeless  attempt  of  embracing  in  one  formula  all 
its  varieties  of  form  and  color,  reserving  to  themselves  the 
liberty  to  deal  with  it  under  whatever  form  it  may  present 
itself.  As  new  devices  of  fraud  are  invented,  they  will  be 
met  by  new  correctives.^  Fraud,  in  the  contemplation  of  a 
court  of  equity,  may  be  said  to  include  properly  all  acts, 
omissions,  and  concealments  which  involve  a  breach  of  legal 
or  equitable  duty,  trust,  or  confidence,  justly  reposed,  and  are 
jnjurious  to  another  ;  or  by  which  an  undue  or  unconscientious 
advantage  is  taken  of  another.^  *  Fraud  was  defined  by  the 
Roman  lawyers  to  be  omnis  calliditas,  fallacia,  Tnachinatio 
ad  cirGumveniendum,  fallendum,,  decijpienduin  cdterum  ad- 
hibita.^  Ail  surprise,  trick,  cunning,  dissembling,  and  other 
unfair  way  that  is  used  to  cheat  any  one  is  considered  as 
fraud.®  Fraud  in  all  cases  implies  a  willful  act  on  thepartjof. 
any  one,  whereby  another  is  sought  to  be  deprived,  by  illegal 
or  inequitable  means,  of  what  he  is  entitled  to,  either  at  law 
or  in  equity.®  By  fraud,  said  Le  Blanc,  J.,'  he  understood  an 
intention   to   deceive,   whether  from    an   expectation   of  ad- 


'  Lawley  ».  Hooper,  3  Atk.  279.  '  1    Fonb.    Eq.    Book  1,  c.  ii,   §  3 ; 

'  Sawj-er  v.  Vernon,   1   Vern.    387;  Story's  Eq.  Jiir.  187. 

La^vlev  \.  Hooper,  3  Atk.  279  ;    Webb  *  Di;;.  Lib.  4,  tit.  3,  leg.  1. 

V.    Uorke,   2   Sch.   <fe   Lef.   666.      Lord  '  Fineh.  439. 

Hardwicke's  Letter  to   Lord    Kaimea,  '  Green  v.  Nixon,  23  Beav.  536. 

Life  of  Lord  Knimes.  vol.  II,  p.  341 ;  ^  2  East,  108. 
Anderson  v.  Fitzq;erald,  4  H.  L.  511, 
per  Lord  St.  Leonards. 


*  Belcher  v.  Belcher,  10  Yerg.  121;    Kennedy  v.  Kennedy,  2  Ala.  571 
Gale  V.  Gale,  19  Barb.  249. 


FRAUD.  4o 

vantage  to  the  party  himself,  or  from  ill-will  toAvards  another. 
Collusion  is  considered  in  a  court  of  equity  as  a  fraud.^ 

The  variety  of  forms  which  fraud  may  assume  would  seem 
to  set  all  systematic  classification  at  defiance,  hut  Lord  Ilard- 
wicke  has  done  much  towards  simplifying  that  branch  of  the 
subject  which  relates  to  fraud  in  matters  of  contract  by  divid- 
ing it  into  four  heads.  First,  actual  fraud,  or  dolus  malxis^ 
arising  from  facts  and  circumstances  of  imposition  ;  secondly, 
fraud  arising  from  the  intrinsic  nature  and  subject  of  the  bar- 
gain; thirdly,  fraud  which  may  be  presumed  from  the  circum- 
stances and  condition  of  the  parties  contracting;  fourthly, 
fraud  which  may  be  collected  and  inferred  from  the  matter 
and  circumstances  of  the  transaction  as  being  an  imposition 
and  cheat  on  other  persons,  not  parties  to  the  transaction.^ 

Courts  of  equity  do  not  affect  to  consider  fraud  in  the  light 
of  a  crime ;  it  is  not  their  province  to  punish  ;'  nor  have  they 
any  censorial  authority  ;*  they  interfere  in  cases  of  fraud  in  a 
civil  and  not  in  a  criminal  point  of  view. 

Courts  of  equity  have  an  original,  independent,  and  inher- 
ent jurisdiction  to  relieve  against  every  species  of  fraud,^*  not 
being  fraud  of  a  penal  nature.  Ev^ery  transfer  or  conveyance 
of  property  by  what  means  soever  it  be  done  is  in  equity 
vitiated  by  fraud.  Deeds,  obligations,  contracts,  awards,  judg- 
ments or  decrees  may  be  the  instruments  to  which  parties  may 
resort  to  cover  fraud,  and  through  which  they  may  obtain  the 
most  unrighteous  advantages,  but   none  of  such   devices   or 


'  Gfirth  V.  Cotton,  3  Atk.  757 ;  "Brom-  *  See  2  V.  <fe  B.  298. 

leyv.Sinith,  20  r;e;iv.  671  ;  Spackiiiau's  '  C  ilt  v.  Woollaston,  2  P.  Wins.  156; 

Ca^e,  34  L.  J.  Cli.  321.  Steel    v.    Baylis,    Hk    219  ;     Franks    v. 

"Chesterfield  v.  Jannf5en,  2  Ves.  155,  Weaver,  10  Beav.  297;    Glasse  «.  Mar- 

156.  shall,  15  Sim.  71. 

'  See  Waltham  v.  Broughton,  2  Atk. 
43. 


»  Jones  t'.  BoUes,  9  Wal.  CG4  ;  Phalcii  v.  Clark,  19  Ct.  421. 


44  FRAUD. 

instruments  will  be  permitted  by  a  couii;  of  equity  to.  obstruct 
the  requisitions  of  justice.  If  a  case  of  fraud  be  established, 
a  court  of  equity  will  set  aside  all  transactions  founded  upon 
it  by  whatever  machinery  they  may  have  been  effected,  and  not- 
withstanding any  contrivance  by  which  it  may  have  been 
attempted  to  protect  them.  It  is  immaterial  whether  such 
machinery  and  contrivance  consisted  of  a  decree  in  equity  and 
a  purchase  under  it,  or  of  a  judgment  at  law,  or  of  other 
transactions  between  the  actors  in  the  fraud. ^*  In  all  cases  of 
fraud,  not  penal,  a  court  of  equity  has  a  concurrent  jurisdic- 
tion with  courts  of  law,^  with  the  single  exception  as  to  fraud 
in  obtaining  a  will.  With  respect  to  fraud  used  in  obtaining 
the  execution  or  setting  up  a  will,  the  jurisdiction  does  not 
exist.  If  the  will  be  of  real  estate  it  is  exclusively  cognizable 
at  law  ;  ^  if  of  personal  estate  in  the  Court  of  Probate.*  The 
courts  of  ordinary  jurisdiction  being  competent  to  deal  with 
the  matter,  there  is  no  occasion  for  invoking  the  aid  of  a  court 
of  equity.^ 

Courts  of  equity  and  courts  of  law  have  in  general  a  con- 
current jurisdiction  to  suppress  and  relieve  against  fraud,t 
but  there  are  many  courses  of  conduct  which  a  court  of  equity 

"  Bowen  v.  Evans.  2  H.  L  281.     See  Bright  v.  Eynon,  1  Burr.  396;    Adam 

South   Sea   Co.  v.   Bumpstead,  3  Vin.  son  v.  Evitt,  2  R.  &  M.  71. 

Ab.    140;    Richmond  J'.   Ta3'leur,    IP.  '  Powis  f.  Andrews,  2  Bro.  P.  C.5S4  ; 

Wins.  736;  Fihuer  y.  Gott,  4  Br.i.  P.  C.  Bates  )•.  Graves,  2  Ves.  J.  287;    Jones 

230  ;  White  v.  Hall,  12  Ves.  324  :  Her-  v.  Gregory,  2  D.  J.  &  S.  87. 

bert  r.  Bulkelej',  Kidg.  300;    Brydges  ^  Kerrick  v.   Bransby,  7  Bro.  P.  C. 

V.  BranfiU,   12   Sim.  369;    Robinson?/,  437;   Alien  i/.  Macpherson.  1  H.  L.  191 ; 

Lord  Vernon,  7  C.  B.  N.  S.  231 ;  Rogers  Jones  v.  Gregory,  2  D.  J.  <k  S.  87. 

V.  Hadley,  32  L.  J.  Exch.  241.  ^  lb. 

"  Colt  V.  WooUaston,  2  P.  Wms.  156; 


*  Perigue  v.  Wood,  1  Johns.  Ch.  401 ;  Niles  v.  Anderson,  5  How, 
(Miss.)  365  ;  Hoitt  v.  Ilolcomb,  23  N.  H.  535. 

+  Smith  v.  Mclver,  9  Wheat.  532;  White  v.  Jones,  4  Call,  253;  Allen 
V.  Ilopson,  1  Freem.  27C;  Haden  v.  Garden,  7  Leigh,  157  ;  Poore  ®.  Price- 
5  Leigh,  52 ;  Crane  v.  Conklin,  Saxton,  346  ;  Boreing  v.  Singery,  4  H.  & 
McH.  308. 


FRAUD.  45 

construes  to  be  fraudulent,  which  cannot  be  taken  notice  of  by 
a  court  of  law,^  though  it  is  not  easy  to  define  the  distinction 
between  that  which  a  court  of  equity  treats  as  a  fraud  and  that 
which  is  considered  fraud  at  law.''  •'  There  is  a  very  great  dis- 
tinction," said  Kiudersley,  Y.-C,  in  Stewart  v.  Great  Western 
Railway  Company,^  "  between  fraud  as  regarded  by  a  court  of 
equity  and  fraud  as  regarded  by  a  court  of  law.  To  draw  the 
line  between  them,  and  to  give  such  a  definition  of  the  one 
and  of  the  other  as  should  meet  all  possible  cases  would  be 
a  very  difficult,  if  not  impossible,  task.  In  order  to  constitute 
fraud  at  common  law,  it  is  not  enough  to  show  that  fraud  in 
the  sense  of  misrepresentation  and  undue  advantage  of  the 
position  of  the  parties  said  to  be  imposed  on  has  been  commit 
ted,  but  the  extent  of  the  fraud  must  be  brought  home  to 
the  party  to  the  action  who  is  charged  with  it.  In  the  case 
of  fraud  in  the  sense  of  a  court  of  equity,  a  court  of  equity  will 
take  into  account  all  the  circumstances  of  the  case — not  only 
the  act  and  intention  of  the  party,  but  the  circumstances  under 
which  the  act  was  done ;  the  position  of  the  party  who  is  said 
to  be  imposed  upon;  his  being  inops  consilii i  his  being  in  a 
state  of  bodily,  and,  therefore,  mental  weakness,  and  so  on. 
Won  constat  these  are  sufficient  to  constitute  legal  fraud." 

If  there  is  a  full,  perfect,  and  complete  remedy  at  law,  it  is 
not  tlie  course  of  the  court  to  interfere.**     But  the  eircum- 


'  Trenchard  v.  Wanley,   2  P.  Wma.  *  2  Dr.  &  Sm.  438.  11  Jur.  N.  S.  627. 

166;  Butclier  v.  Butcher,  1  V.  <fc  B.  98;  *  Nuwham  v.  May.  13  Pri.  752;  Deere 

Clarke  v.  Manning,  7  Heav.  167.  v.  Guest,  1  M.  <fe  U.  516. 

*  Traill  v.  Baring,  33  L.  J.  Ch.  521. 


*  Russell  V.  Clark's  Executors,  7  Cranch,  G9. 

Before  a  creditor  can  obtain  the  aid  of  a  court  of  chancery  to  set  aside 
a  fraudulent  conveyance,  he  must  obtain  judgment,  issue  an  execution 
and  procure  a  return  of  nulla  bona.  Hendricks  v.  Robinson,  2  Johns.  Ch. 
283  :  Brinkcrhof  v.  Brown.  4  Johns.  Ch.  G71;  s.  c.  6  Johns.  Ch.  139;  Hal- 
bert  c.  Grant  i  Mon.  581  ;  Poague  v.  Boyce,  6  J.  J.  Marsh.  70 ;  Chamber- 


46  FRAUD. 

Stance  that  relief  may  be  bad  at  law  does  not  exelnde  the  joris- 
dietion  of  the  court.*  The  role  of  the  eonit  is  to  interfere  !n 
all  cases  where  the  interests  of  justice  call  for  and  reqnire  its 
interference.**  Although  a  man  may  have  a  good  defence  to 
an  action  at  law,  he  is  not  precluded  firom  proceeding  in  eqnitj 
to  restrain  the  action.  It  is  enough  if  he  can  show  an  equit- 
able case.*  If  th3re  be  an  equitable  case  stated  bj  the  bUl, 
there  is  jurisdiction  to  interfere  bj  wa j  of  injunction,  if  neces- 

*  Evans  v.  BicttieB,  6  Yes.  183 ;  Ad-  SI ;  Chesterfield  t.  Jaonsen.  2  Vea.  155 ; 
amsoQ  E.  Evitt.  2  U.  <Sr  >I.  >>;  Wilaoa  BartlieJt  r.  SoJmoo,  6  D.  >L  A  G.  40; 
V.  Short,  6  lia.  SioS.  379:  Knbcs.)!!!  v.  SMiaa  v.  CronEclier,  1  D.  F.  <t  J.  523; 
Eirl  of  Devon,  4  Jur.  2*.  S   245  ;  per  Barry  r.  Croeskey.  2  J.  A  EL  L 

Lord  Ci  an  worth;  Slim  r.  OrtHieha',  1  '  Feraahoagh  r.  Leader.  15  L.  J.  Clu 

D.  F  A  J.  523.  45^* ;  Loodoa  Asoirance  Ca  v.  HosuSt 

•  Joimaon  r.  OgOTy,  2  Eq.  Ca.  Ab.       11  L  T.  U± 


layne  v.  Temple,  2  Hsmd.  384;  Griffin  r.  Mtcher,  57  Me.  270;  Jones  v. 
Green,  1  WalL  330. 

After  jucigioeat  by  defamlt  agamsfc  the  debtor  who  has  made  a.  ftaudnt- 
lent  convevanee,  an  attaching  crediior  may  proceed  in  chancery.  Dodge 
r.  Griswold,  8  N.  H.  425. 

A  jattgment  need  not  be  obtained  when  the  frandalent  grmtor  is 
deceased.   OBrien  r.  Coulter,  2  Blackt  421 ;  Birely  v,  Staley,  5G.&3. 4S2, 

Where  tlie  claim  is  purely  eqaitable,  and  sach  as  a  conrt  of  equity  will 
take  cognizance  of  in  the  first  instance,  it  will  go  on  and  remoTe  all 
obstructioQs  to  its  enforcement.    Halbert  e.  Grant,  4  Mon.  58Q>. 

If  a  cMm  is  to  be  satisfied  out  of  a  fnnd  which  is  aoce^bie  onty  by 
the  aid  of  a  cotnt  of  equity,  appIicatifHS  may  be  made  in  the  first  instance 
to  that  court.     O'Brien  v.  Conlter,  3  Blaefcf.  42L 

If  pjjrties  concerned  in  a  partnerdrip  hare  dissolved,  and  made  a  dis- 
position of  the  property  which  is  irandolent,  as  to  partnership  creditors,  a 
court  of  eqnity  will  entertain  a  bill  filed  by  the  latter,  although  they  are 
simple  contract  creditors.     Lawtcm  ?.  Levy,  3  Edw.  Ch.  195. 

It  is  not  enongh  that  there  is  a  remedy  at  law ;  it  mi^  be  plain  and 
adequate — in  other  words,  as  practical  and  efficient  to  the  aids  of  justice 
and  its  prompt  administration  as  the  remedy  in  equity.  Boyce  «.  Gnmdy, 
3  Pet.  377. 

*  Wambaxzee  c.  Kennedy.  4  Dessau,  474. 

A  conrt  of  eqiity  will  annul  an  instrument  obtained  by  fiand, although 
there  may  be  a  good  defence  at  law.  Johnson  f.  Hendley,  5  Mnn£  219; 
Henshaw  r.  Atkins,  2  Root.  7. 

If  the  grantor  is  insolvent,  a  bcmd  of  conveyance  which  has  been  ob. 


FRAUD.  47 

saiy,  and  also  by  way  of  ordering  the  instrument  to  be  deliv- 
ered up.^  The  question  for  the  court  to  consider  always  is, 
whether  the  fiicts  are  such  as  to  constitute  that  kind  of  fraud, 
which  a  court  of  law  would  necessarily  take  cognizance  of  and 
treat  as  a  fraud  in  the  same  manner  and  to  the  same  extent  as 
a  court  of  equity  would  do.^  The  superior  powers  and  effi- 
ciency of  a  court  of  equity  in  molding  its  decrees  so  as  to 
meet  the  exigencies  of  each  particular  case  and  do  justice  be- 
tween the  parties  in  the  most  minute  detail,  is  often  of  itself  a 
sufficient  ground  for  the  exercise  of  the  jurisdiction  in  cases 
where  there  is  a  clear  remedy  at  law.^  In  Colt  v.  Woollaston* 
it  was  held  that  a  person  who  had  been  induced  by  fraud  on 
the  part  of  the  promoters  of  a  public  company  to  subscribe 
for  shares  might  obtain  his  money  back  by  a  bill  in  equity, 
although  an  action  at  law  might  have  been  brought  for  the- 
same  purpose  with  success.  This  doctrine  has  ever  since  been 
recognized  as  correct,  and  it  has  been  frequently  acted  on.^  If 
a  case  of  fraud  be  presented  to  the  court,  an  equity  is  at  once 
raised  to  restore  the  parties  deceived,  as  nearly  as  possible,  to 
the  situation  in  which  but  for  the  fraud  they  would  have  stood, 

»  Traill  v.  Baring:,  33  L.  J.  Ch.  52Y,  AVestern  Railway  Co.,  2  Dr.  &  Sm.  438 

per  Turner,  L  J.     bee  Lloyd  v.  Clarke,  11  Jur.  N.  S.  627. 
6  Beav.  309;  Llewellin  v.  Pace,  1  W.  E.  "  2  P.  Wms.  154. 

28;  Smith  v.  Reese  River  Co.,  L.  R.  2  *  Green  v.  Barrett,  1  Sim.  45;  Blain 

Eq.  2(U.  V.  Agar,  2  Sim.  289 ;  Stainbnnk  r.  Fern- 

^  Ayre's  Case.  25  Beav.  528;  Stewart  ley,  9  >im.  550 ;  Cridland  v.  I)e  ilauley, 

t'.  Great  Western  Railway  Co.,  2  Dr.  &  1  Dog.  &  Sm.  459 ;  Beccliing  v.  Lloyd, 

Sm.  438.  3  Drew.   227 ;  Barry  v.  Crosskey,  2  J. 

"Bright?;.  Eynon,  1 1'urr.  390 ;  A j-re's  <fe  IL   ];  Henderson  v.  Lacon,  L.  R.  5 

Case,  25  Beav.  528;  Slim  ?'.  Croucher,  Eq.    250.     But  see  Thompson  v.  Bar- 

1  D.  F.  <fc  J.   523;  Stewart  v.  Great  clay,  9  L.  J.  Ch.  219,j9c'r  Lord  Broug- 
ham. 


tained  by  fraud  will  be  rescinded  for  defect  of  title,  although  there  may 
be  a  good  defence  at  law.     Ingram  v.  Morgan  et  ctl,  4  Humph.  66. 

There  is  no  distinction  between  cases  of  relief  when  damages  are  occa- 
Bioned  by  fiaud  and  when  they  are  occasioned  by  breach  of  contract.  If 
there  is  an  adequate  remedy  at  law,  a  court  of  equity  has  no  jurisdiction. 
Woodman  v.  Freeman,  25  Me.  531. 


4^  FEATJD. 

and  for  which  dcamages  in  an  action  might  be  a  very  inade- 
quate remedy.  It  is  no  objection  to  this  equity  that  the  facts 
may  also  sujjport  an  action.^  If  the  amount  of  damage  is  ascer- 
tained, or  capable  of  being  easily  ascertained,  the  court  will 
not  send  the  matter  to  a  jury.'' 

In  the  view  of  a  court  of  equity,  a  man  who  has  been 
induced  by  fraud  to  convey  an  estate  remains  the  owner,  sub- 
ject to  the  repayment  of  the  moneys  which  he  has  received.' 

A  contract  or  other  transaction  induced  or  tainted  by  fraud 
IS  not  void,  but  only  voidable  at  the  election  of  the  party  de- 
frauded.** The  party  defrauded  has  a  right  to  have  it  avoided, 
unless  he  has  by  his  own  act  put  it  out  of  his  power  to  rein- 
state the  party  against  whom  he  seeks  relief  in  the  position  in 
which  he  stood  at  the  time  of  the  transaction,^  or  unless  some 
innocent  party  would  be  prejudiced  thereby.*  The  transaction 
being  valid  until  it  is  avoided,  third  parties  without  notice  of 
the  fraud  may  in  the  meantime  acquire  rights  and  interests  in 
the  matter  which  they  may  enforce  against  the  party  de- 
frauded.'   Persons,  for  instance,  who  have  been  induced  by  the 

'Blnir  v.   Bromley,  2  Ph.   361,  per  die,  L.  R.  1  Sc.  App.  Ca.  156;  Oakes 

Lord  Cottenham ;  Walsham  v.  Stainton,  v,  Turquand,  L.  R.  2  App.  Ca.  346. 
1  1).  J.  &  S.  678;  St.  Aubyn  v.  Smart,  "  White  v.  Garden,  10  C.  B.  919;  De- 

L.  R.  5  Eq.  183.     See  Barry  v.  Ci'oss-  posit  and  General  Life  Assurance  Co,  w. 

key,  2  J.  tfe  H.  \,  infra.  Ayscough,   6  E.   &   B.  761;  Clarke  v. 

Mngram  v.  Thorp,  7  Ha.   76.     See  Dickson,   El.   Bl.   <fe  El.   148;    NicoU's 

Henderson  v.  Lacon,  L.  R.  5  Eq.  250;  Case,  3  D.  &  J.  387;  Mixer's  Case,  4  D. 

conip.  Whitmore  «,  Mackeson,  16  Beav.  &  J.  586. 
128.  "  Scholfield  v.  Templer,  4  D.  <fe  J.  429. 

^  Slump  V.  Gaby,  2  D.  M.  cfe  G.  630.  '  Oakes  v.  Turquand,  L.  R.  2   App. 

*  Clarke   v.  Dickson,   El.  Bl.  &  El.  Ca.  375.     See  Kiugsford  v.  ilerry,  11 

148;  Rawlins  v.  Wickham,  3   D.  &  J.  Exch.  579. 
3:i2.    Western  Bank  of  Scotland  v.  Ad- 


*  Bank  of  Georgia  v.  Higginbottam,  9  Pet.  48 ;  Lockbridge  v.  Foster 
et  al.  4  Scam.  5G9. 

That  is  absolutely  void  which  the  law  or  the  nature  of  things  forbids 
to  be  enforced  at  all,  and  that  is  relatively  void  which  the  law  condemns 
as  a  wrong  to  individuals,  and  refuses  to  enforce  as  to  them.  Acts  tainted 
with  infirmity  may  well  be  called  by  some  void  and  by  others  voidable, 
because,  regarded  in  different  aspects,  they  are  both.     A  contract  may  for 


FRAUD.  40 

fraud  of  the  directors  of  a  company  to  become  shareholders  of 
the  company,  cannot,  as  against  creditors  of  the  company,  repu- 
diate their  liability  as  shareholders  after  discovering  the  fraud.^ 

The  case  of  goods,  or  personal  property,  obtained  by  felony, 
or  by  a  trick,  must  be  distinguished  from  the  case  of  goods 
obtained  by  fraud.  In  the  one  case,  the  owner  has  no  mind  or 
intent  to  part  with  his  property  in  the  goods.  In  the  other 
case,  he  acts  with  the  intention  of  parting  wdth  the  property, 
though  the  intention  has  been  induced  by  undue  means.^ 
Goods  obtained  by  felony,  or  by  a  trick,  may  be  reclaimed  by 
the  true  owner  even  from  a  bond  fide  pui-chaser,^  unless  they 
have  been  purchased  in  market  overt. 

A  distinction  must  also  be  taken  between  cases  where  a 
man  executes  an  instrument  with  the  mind  and  intention  to 


•  Oakes  v.  Turquand,  L.  R.  2  App.  Ca.       Talfourcl,  JJ. ;  Ilardman  v.  Booth,  1  II. 
325.  &  C.  808. 

■'  10  C.  B.  924,  927,  per  Williams  and  '  Hardman  v.  Booth,  1  II.  &  C.  803. 


a  time  be  voidable  as  against  one,  and  void  as  against  the  others  whom  it 
is  intended  to  affect:  voidable  as  against  the  parties  doing  wrong  and  void 
as  against  the  persons  wronged ;  or,  vice  versa,  voidable  in  favor  of  the 
persons  wronged,  and  void  in  favor  of  the  wrong-doer;  void  as  not  bind- 
ing to  fulfill,  and  voidable  after  fulfillment ;  voidable  in  fact  because  void 
or  not  binding  in  right.  Persons  intended  to  be  wronged  by  a  transac- 
tion are  not  bound  by  it,  nor  are  they  bound  to  reject  it.  They  may 
adopt,  or  confirm,  or  agree  to  be  bound  by  it.  Their  consent,  which,  be- 
cause of  the  wrong,  the  law  considers  as  not  given,  may  be  given  after  the 
wrong  becomes  known,  and  then,  if  given  with  the  freedom,  intelligence 
and  deliberation  that  the  law  of  ratification  requires,  and  in  a  form  ade- 
quate to  the  particular  kind  of  contract,  they  become  willing  parties  to 
the  contract,  bound  equally  with  others.     PearsoU  v.  Chapin,  44  Penn.  9. 

A  party  who  affirms  a  voidable  contract,  is  bound  by  it  in  all  its  par- 
ticulars.    Gallovvay  v.  Holmes,  1  Doug.  330. 

Fraud  in  a  conveyance  can  only  be  set  up  by  the  i)arties  to  a  deed  and 
those  who  hiive  succeeded  to  their  rights,  and  not  by  third  parties.  Love 
V.  Belk,  1  Ired.  Ch.  163. 

The  assignee  of  a  contract  cannot  take  advantage  of  any  fraud  prac- 
ticed upon  his  grantor  in  making  it.     Carroll  v.  Potter,  Walk.  Ch.  355. 


50  FRAUD. 

execute  it,  thongli  bis  assent  may  have  been  obtained  b}-  fraud, 
and  cases  where  a  man  is  by  fraudulent  contrivance  induced  to 
put  liis  hand  and  seal  to  an  instrument  which  he  never  in- 
tended and  had  no  mind  to  execute.  If  a  man  having  no  mind 
or  intention  to  execute  a  particular  instrument  does  what  he 
does  with  the  mind  and  intention  to  execute  a  deed  of  a  diifer- 
ent  kind,  and  for  a  different  purpose  from  that  which  by  fraud 
and  deceit  was  substituted,  the  deed  is  not  voidable  but  void, 
and  no  estate  passes,  at  least  as  between  the  parties  to  the  in- 
strument and  parties  taking  with  notice.'^*  Thus,  where  a  man 
intending  to  execute  a  covenant  to  produce  title  deeds,  put  his 
hand  and  seal  to  a  deed  which  was  falsely  and  fraudulently 
read  over  to  him,  and  represented  as  being  a  covenant  to  pro- 
duce, when  in  fact  it  was  a  mortgage,  the  deed  was  held  void 
as  being  a  cheat  and  trick.^  So  also,  where  a  broker  fraudu- 
lently obtained  from  his  emploj^er  the  cancellation  of  his  signa- 
ture to  a  transfer  of  shares  which  he  had  bought  for  him,  and 
by  means  of  the  cancelled  transfer  and  certificates  induced  the 
vendor  to  execute  a  fresh  transfer  to  himself,  and  thereupon 
got  the  shares  registered  in  his  own  name,  and  then  mortgaged 
them  to  the  defendant,  it  was  held  that  the  effect  of  the  first 
transfer  was  not  destroyed  by  the  cancellation  fraudulently  ob- 

>  Vorley  v.  Cooke,  1  Giff.  234 ;  Ogll-  ^  Voiley  v.  Cooke,  1  Giff.  234;  Lee  v. 

vie  V.  JeaOVeson,  2  Giff.  353.     See  lur-       Angas,  15  W,  R.  119. 
ther,  injra. 


*  A  person  wlio  lias  obtained  an  absolute  deed  under  a  promise  to  exe- 
cute a  defeasance,  may  be  compelled  to  i^crform  his  promise.  Peck  v. 
•Baldwin,  1  Root,  455. 

The  payee  of  a  note  who  has  been  induced  by  fraud  to  destroy  it,  may 
have  relief  in  equity.     Richards  r.  Pridley  Wright,  1G7. 

A  mortgage  which  has  been  released  through  fraud  may  be  reinstated. 
Poore  V.  Price,  5  Leigh,  52 ;  Trenton  Banking  Co.  r.  Woodruff,  1  Grcen- 
Ch.  137;  Barnes  v.  Carmack,  1  Barb.  392;  Lynch  v.  Tibbits.  24  Barb.  51. 

A  fraudulent  release,  obtained  from  one  partner,  does  not  extingiush 
the  lien  of  the  other  partners.     Canal  Co.  v.  Gordon,  6  Wall.  561. 


FRAUD.  51 

tained,  and  the  registration  was  set  a»ide.^  So  also,  in  a  ease 
where  the  persons  named  as  grantor  and  grantee  in  a  deed  had 
no  mind  or  intention  that  any  estate  should  pass  from  the  one 
to  the  other,  and  were  merely  cheated  into  the  execution  of 
deeds  without  a  knowledge  of  their  contents,  no  estate  was 
held  to  pass.^ 

Similar  considerations  apply  to  the  case  of  forged  instru- 
ments. 'No  estate  can  pass  under  a  forged  instrument,'  but  in 
special  cases  an  innocent  party  whose  title  to  property  is  de- 
rived under  a  forged  instrument  may,  as  against  the  party  on 
whom  the  forgery  has  been  practiced,  have  a  better  equity  to 
the  retention  of  the  property.* 

If  a  transaction  has  been  originally  founded  on  fraud,  the 
original  vice  will  continue  to  taint  it,  however  long  the  nego- 
tiation may  continue,  or  into  whatever  ramifications  it  may  ex- 
tend.® ]S"ot  only  is  the  person  who  lias  committed  the  fraud 
precluded  from  deriving  any  benefit  under  it,  but  an  innocent 
person  is  so  likewise,  unless  there  has  been  some  consideration 
moving  from  himself.* 

In  equity,  no  length  of  time  will  run  to  protect  or  screen 
fraud.'  "  Those,"  said  Lord  Cottenham  in  Trevelyan  v.  Char- 
ter,^ "who  may  be  disposed  fraudulently  to  appropriate  to 
themselves  the  property  of  others,  may  be  assured  that  no  time 
will  secure  them  in  the  enjoyment  of  their  plunder ;  but  that 
their  children's  i^hildren  will  be  compelled  by  this  court  to 


'  Donalilson  v.  Gillott,  L.  R.  3  Eq.  Lord  Eldon ;  Goddard  v.  Carlisle,  9  Pii. 

277,  169;    Daubeney  v.  Cocldnirn,   1    Met-. 

**Ogilvie  w.  Jeaffreson,  2  Giff.  353.  643;   I^owen   v.   Evans,   2   II.   L.   250; 

'  Esdaile  v.  La  Nauze,  1  Y.  cfe  ('.  391;  Russell  v.  Jackson,  10  Ha.  212  ;  Scliol- 

Boursot  /'.  Savage,  L.  R.  2  Eq.  134.  field   v.  Templur,  Johns.  105 ;  4  D.  <fe 

♦  Jonesf.  I'ow^es,  3M.  <kK.  581.   See  J.  429;  Topham  v.  Duke  of  Portland, 

further,  mfm.  1  f).  J.  &  S.  569,  per  Turner,  L.  J. 

^  Bri'dgiiian   v.  Green,  2   Yes.    626;  '  Cotlerell  v.   rurchase,  Forrest,  61 ; 

RevncU".   Sprye,  1   1).  M.  &  G.  600,  Irvine  v.  Kirkpatrick,  7  Beli's  So.  App. 

697;    Boweii  v.  Evans,  2   II.  L.   281;  Ca.  186;  AUfrey  v.  Alllrey,  1   Mac.  & 

Smith  V.  Ka3%  1  II.  L.  750,  775.  G.  89;  Bowen  v.  Evans,  2  II.  L.  257; 

°  Bridgrnan    v.    Green,   2   Yes.   626;  Walsham  v.  Stainton.  1  1).  J.  <t  S.  C78. 

Iluguciiiu  V.  Basley,  14  Yes.  289 ;  per  *  4  L.  J.  Ch.  N.  S.  214. 


52 


FRAUD. 


restore  it  to  those  from  whom  it  has  been  fraudulently  ab- 
stracted," *  The  right  of  the  party  defrauded  to  have  the  trans- 
action set  aside,  is  not  affected  by  lapse  of  time,  so  long  as  he 
remains  without  any  fault  of  his  own  in  ignorance  of  the  fraud 
which  has  been  committed.^  The  equity  is  not  confined  to  the 
party  defrauded,  but  extends  to  heirs  at  law  in  respect  of 
frauds  committed  on  their  ancestor.' 

A  man  cannot  repudiate  a  transaction  as  far  as  it  is 
onerous  to  himself,  and  adopt  it  as  far  as  it  is  beneficial.  He 
must  be  able  to  deal  with  the  whole  either  by  adopting  or 
rejecting  it  in  toto}  ^  There  may,  however,  be  cases  in  which 
the  same  transaction  may  be  good  as  to  part  and  for  certain 
purposes,  although  voidable  as  to  other  parts  and  for  other 
purposes.'  If  a  transaction  is  fair  as  between  the  parties  to 
it,  it  is  not  invalid  merely  because  it  may  have  been  concocted 
and  brought  about  by  a  third  party  with  a  fraudulent  intention 
of  benefiting  himself.  In  such  a  case,  so  far  as  regards  the 
third  party,  the  whole  may  be  looked  upon  as  one  transaction 


'  See  Alden  v.  Gregory,  2  Ed.  280; 
WliJilley  V.  Whalley,  1  Mei*.  436  ;  Chen- 
nell  V.  Martin,  9  L.  J.  Cli.  208. 

''  Blair  v.  Bromley,  2  Ph.  361  ;  Rolfe 
V.  Gregory,  34  L.  J."  Ch.  275. 

"  Falkner  v.  O'Brien,  2  Ba.  &  Be.  221. 


♦  Bennett  v.  "Wade,  1  Dick.  84 ;  Bel- 
lamy ''.  Sabine,  2  Ph.  4.50;  Hanson  v. 
Renting,  4  IJa.  1;  Great  Luxemburg 
liiiilwav  Co.  V.  Magnay,  25  Beav.  594. 

*  Bellamy  v.  Sabine,  2  Ph.  425,  437. 


*  Farmers'  Bank  of  Va.  v.  Groves,  13  How.  51 ;  Kinney  v.  Kieman,  2 
Lans.  492  ;  Voorhies  v.  Earl,  2  Hill,  288 ;  Jankins  v.  Simpson,  2  Shep.  364  • 
Fay  V.  Oliver,  20  Vt.  118  ;  Jennings  v.  Gaze,  13  111.  610 ;  Masson  ».  Bovet, 
1  Denio,  74 ;  Clarkson  v.  Mitchell,  3  E.  D.  Smith.  269  ;  Jewett  v.  Petit,  4 
Jlich.  508 ;  Kimball  v.  Cunningham,  4  Mass.  504 ;  Stevens  v.  Hyde,  33 
Barb.  171  ;  McGuire  v.  Callahan,  19  Ind.  128. 

The  proper  application  of  the  rule  in  case  of  a  sale  is  to  the  property 
sold  when  that  consists  of  several  particulars  :  The  contract  cannot  be 
rescinded,  as  to  a  part  of  the  property,  and  left  in  force  as  to  the  rest. 
But  if  the  vendor  has  been  induced  through  imposition  effected  by  the 
vendee  to  accept  that  in  payment  which  proves  to  be  no  such  payment  as 
he  had  the  right  to  expect,  he  is  permitted  to  renounce  it,  and  prosecute 
his  claim  for  the  property  sold  as  if  no  such  payment  had  been  attempted. 
Loomis  f).  Wainwright,  21  Vt.  520 ;  Martin  v.  Roberts,  5  Cash.  120. 


MISRErKESENTATION.  53 

in  order  to  judge  of  liis  motives,  and  to  put  a  construction 
upon  liis  acts ;  but,  as  regards  the  other  two,  who,  though 
affected  by  one  part  of  the  transaction,  may  be  total  strangers 
to  the  other  part,  it  is  not  only  not  necessary,  but  it  would  be 
unjust  to  consider  every  part  of  the  transaction  affected  by 
objections,  which,  in  fact,  apply  only  to  particular  portions  of 
it.  ^  If,  for  instance,  a  man  brings  about  an  arrangement 
between  father  and  son,  in  order  that  he  might  afterwards  deal 
with  the  son,  the  motive  might  be  most  improper,  but  the 
arrangement  between  father  and  son  must  be  judged  of  upon 
its  own  merits.^  l^or  is  an  instrument  which  has  been  entered 
into  between  parties  for  a  purpose  which  may  be  considered 
fraudulent  as  against  a  third  party  necessarily  invalid  as 
between  themselves.^ 


SECTION  II.— MISREPRESENTATION— CONCEALMENT. 

The  largest  class  of  cases  in  which  courts  of  justice  are 
called  upon  to  give  relief  against  frand,  is  where  there  has 
been  a  misrepresentation,  or  suggestio  falsi}  If  a  man  rep- 
resents, as  true,  that  which  he  knows  to  be  false,  and  makes 
the  representation  in  such  a  way,  or  under  such  circumstances 
as  to  induce  a  reasonable  man  to  believe  that  it  is  true,  and  is 
meant  to  be  acted  on,  and  the  person  to  whom  the  representa- 
tion has  been  made,  believing  it  to  be  true,  acts  upon  the 
faith  of  it,  and  by  so  acting  ^sustains  damage,  there  jsjraud  to 
support  an  action  of  deceit  at  law,  and  to  be  a  ground  for  the 
rescission  of  the  transaction  in  equity.'  *     It  is  not,  however, 

'  lb.  438.  ■*  Broderick  v.  Broderick,  1   P.  Wms. 

2  lb.  240;  Jarvis  v.  Duke,  1  Vern.  20. 

»  Shaw  «;.  Jeffery,  13  Moo.  P.  C.  432.  'Evans    v.    Bicknell,   6    Ves.    174; 


*  Where  a  party  misrepresents  a  material  fact  by  which  another  is 
milled  or  imposed  upon,  to  obtain  an  undue   advantage  of  him,  it  is 


54  MISREPRESENTATION. 

necessary,  in  order  to  constitute  fraud,  tliat  a  man  who  makes 
a  false  representation  should  know  it  to  be  false.  It'  is  enough 
that  it  he  ftilse,  if  it  he  made  recklessly  without  an  honest 
belief  in  its  truth,  or  witliout  reasonable  grounds  for  believing 
it  to  be  true,  and  he  made  deliberately  and  in  such  a  way  as  to 
give  the  person  to  whom  it  is  made  reasonable  ground  for 
supposing  that  it  was  meant  to  he  acted  on,  and  has  been  acted 
on  by  him  accordingly.^  If  a  man  makes  a  representation  as 
of  his  own  knowledge,  not  knowing  whether  it  be  true  or 
false,  and  it  is  in  fact  untrue,  he  is  guilty  of  fraud,  as  much  as 
if  he  knew  it  to  be  untrue.  It  is  in  law  a  willful  falsehood  for 
a  man  to  assert  as  of  his  own  knowledge  a  matter  of  which  he 
has  no  knowledge.^  It  is  a  wrong  to  state  as  true  what  the 
person  making  such  statement  does  not  know  to  be  true,  even 
though  he  does  not  know  it  to  he  false,  but  believes  without 


Edwards  w.  MTleay,  2  Rw.  287 ;  Adnm-  v.  Edmonds,   13  C.  B.   786;    Thorn  v. 

son  V.  Evitt,  2  H.  &  M.  71;   AttwooJ  v.  Bi-land,   8  Excli.  725;  Ilutton  v.  llos- 

Small,   6  CI.    <fe  Fin.    233;   Gerhard  v.  siter,    7    D.   M.   &  G.  23;    liawlins  v. 

Bates,    2    E.    &    B.    47-5;    Jennings    v.  Wickhnm,  3  D.  <fr  J.  304  ;  Swan  y.  North 

Bronsh'on,  6  D.  M.  &  G.  126;  IJawlina  Britisli   Australian  Co.,  2  II.  &  C.  182. 

V.  Wickham,  3  D.   ife  J.  304;  Slim  v.  See  Western  Bunk  of  Scotland  w.  Addie, 

Crouclier,  1  D.  F.  cfe  J.  518.  L.  R.  1  So.  App.  Ca.  162. 

M'ickard   v.   Sears,   G   A.  &   E.  469;  "  Hazard   v.   Irwin,  18  P'ok.  (Amer.) 

Taylor  v.  Aslnvorth,  11  M.  <fc  W.  413;  96;  Stune  v.  Denny,  4  Mete.  (Anier.) 

West  V.  Jones,  1  Sim.  N.  S.  207;  Evans  151. 


fraud.  Donelson  v.  Clements,  Meigs,  155.  Tlie  representation  must  have 
been  delibsrately  made.  Representations  of  a  fugitive  sort  uttered 
casually  in  a  mixed  conversation  from  impulse  rather  than  reflection 
.should  be  cr.utiously  received  •when  they  are  to  be  made  the  basis  of 
lialulity.  It  is  the  deliberate  Tvill  and  intention  of  the  person  uttering 
the  words,  and  fairly  to  be  inferred  therefrom,  and  not  their  naked 
import  that  ought  to  make  him  liable.  The  person  making  the 
representations  should  be  apprised  by  the  jjsrson  to  whom  they  are 
made  of  the  purpose  for  which  they  are  required.  They  must  be  made 
deliberately,  with  the  consciousness,  on  the  purt  of  the  person  making 
them,  that  they  will  be  confided  in  by  the  person  to  whom  they  are  made 
Casey  v.  Allen,  1  A.  K.  Marah.  465. 


MISEEPKESENTATIOX.  55 

sufficient  grounds  that  the  statement  will  ultimately  turn  out 
to  be  correct.^  * 

An  intention  to  deceive  being  a  necessary  element  or 
ingredient  of  fraud,  a  ftilse  representation  does  not  amount  to 
a  fraud  at  law,  unj^ess  it  be  made  with  a  fraudulent  intent. 
There  is  a  fraudulent  intent  if  a  man,  either  with  the  view  of 
benefiting  himself,  or  misleading  another  into  a  course  of 
action  which  may  be  injm*ious  to  him,  makes  a  representation 
which  he  knows  to  be  false,  or  wdiich  he  does  not  believe  to  be 
true.'^  The  legal  definition  of  fraud  does  not,  however,  include 
necessarily  any  degree  of  moral  turpitude.^  There  is  fraud  in 
law,  if  a  man  makes  a  representationwhicb^  he  knows^ta-l>e 
false^or  does  not  honestly  believe  to  be  true,  with  the  view  to 
induce  another_to  act  on  the  faith,  who  does  so  accordingly, 
and  by  so  doin£_sustains^^amage,  although  he  may  have  had 
DO  dishonest  purpose  in  makmg'The  representation.  If  a  man 
knowingly  and  willfully  makes  a  false  representation,  whereby 
another  is  misled  to  his  prejudice.Jt  is  immatcriaHliat  there 
may  have  been  no  intention  on  his  part  to  benefit  himself,  or 
to  injure  the  person  to  whom  the  representation  was  made. 
If  a  man  says  what  is  false  within  his  knowledge,  or  w^hat  he 
has  no  reasonable  ground  for  believing  to  be  true,  and  makes 


'  1  Smout  V.  Ilbery,  10  M.  &  W.  10.  '  6  M.   &  W.  S11 ;  10  M.  &  W.  155, 

^Tavlor  v.   Ashworth,  11  M.    &  \V.      pe/- Lord  Abinger. 
413  ;  Evans  v.  Edmoiuls,  13  C.  B.  786 ; 
Thorn  v.  Biglahd,  8  Exch.  725. 


*  Bennett  v.  Judson,  21  N.  Y.  238;  Harding  v.  Eandall,  15  Me.  332; 
Stone  V.  Denny,  4  Met.  151 ;  Buford  v.  Caldwell,  3  Mo.  477. 

When  a  party  to  a  contract  places  a  known  trust  and  confidence  in 
the  other  party,  and  acts  upon  his  opinion,  any  misrepresentation  by  the 
party  so  trusted  in  a  material  matter,  constituting  an  inducement  or 
motive  to  the  act  of  the  other  party,  and  by  which  an  undue  advantage  is 
taken  of  him,  is  regarded  as  a  fraud.  Laidlaw  v.  Organ,  2  Wheat.  178; 
Jouzin  »,  Toulmin,  9  Ala.  662  ;  Shaeffer  v.  Sleadc,  7  Blackf.  17S;  Hunt  v. 
Moore,  2  Barr.  105. 


56  MISREPRESENTATION. 

the  repi'esentation  with  the  view  to  induce  another  to  act  upon 
it,  who  does  so  accordingly  to  his  prejudice,  tlie  law  imputes 
to  him  a  fraudulent  intent,  although  he  may  not  have  been  in 
fact  instigated  by  a  morally  bad  motive.  An  intention  to 
deceive  or  a  fraudulent  intent  in  the  legal  acceptation  of  the 
term,  depends  upon  the  knowledge  or  belief  respecting  the 
falsehood  of  the  statement,  and  not  upon  the  actual  dishonesty 
of  purpose  in  making  the  statement.-'  *  "Where,  for  instance, 
the  defendant  had  accepted  a  bill  of  exchange  in  the  name  of 
the  drawee,  purporting  to  do  so  by  procuration,  knowing  that 
in  fact  he  had  no  such  authority,  but  fully  believing  that  the 
acceptance  would  be  sanctioned  and  the  bill  paid  by  the 
drawee,  and  the  drawee  repudiated  the  acceptance,  it  was  held, 
though  the  jury  negatived  a  fraudulent  intention  in  fact,  that 
the  defendant  had  committed  a  fraud  in  law  by  making  a 
representation  which  he  knew  to  be  untrue,  and  which  he 
intended  others  to  act  upon.^ 

The  presence  or  absence  of  a  corrupt  motive  or  dishonest 
pui-pose  distinguishes  moral  from  legal  fraud.  A  misrepresen- 
tation made  without  a  corrupt  motive  or  dishonest  purpose  is 
called  legal  fraud.  If  there  be  pi'esent  a  corrupt  motive  or 
dishonest  purpose  in  making  a  misrepresentation,  there  is 
moral  fraud.* 

In  Wilde  v.  Gibson,^  a  fraudulent  intention  was  not  im- 
puted to  a  man  by  reason  merely  of  his  having  constructive 
notice  that  a  representation  made  by  him  was  untrue,  when  he 

»  Foster  v.  Cliarles,  1  Bing.  107  ;  Pol-  *  Moens  v.  Heyworth,   10  M.  &,  W. 

hill  V.  Walter,  3  B.  <fe  Ad.  114;  Murray  517,  per  Lord  Weiisleydale ;  Wilde  v. 

V.  Mann,  2  Exch.  541,  per  Lord   V\ens-  Gibson,  1  H.  L.  633,  per  Lord  Camp- 

leydale ;  Wilde  v.  Gibson,  1  H.  L.  633,  bell. 


per  Lord  Campbell. 
"  Polhill  V.  Walter, 


3  B.  <&  Ad.  114. 


M  H.  L.  605. 


*  Page  «.  Bent,  3  Met.  371 ;  Collins  v.  Dennison,  13  Met.  549;  Elliott 
V.  Boaz,  9  Ala.  772. 


MISREPRESEXTATIOX.  57 

had  no  actual  knowledge  that  it  was  untrue.  But  the  judg- 
ment in  this  ease  has  been  expressly  disapproved  of  by  Lord 
St.  Leonards/  *  and  cannot,  though  it  was  the  decision  of 
the  highest  tribunal,  be  considered  as  founded  on  sound  prin- 
ciples. 

If  a  man  makes  a  representation  in  the  honest  belief  that 
it  is  true,  and  there  be  reasonable  ground  for  such  belief,  a 
fraudulent  intent  will  not  be  imputed  to  him,  althougb  it  may 
turn  out  to  be  fal^e,^  unless  there  be  a  duty  cast  on  him  to 
know  the  truth.^  A  misrepresentation  made  through  honest 
mistake  is  not  a  ground  for  rescinding  a  transaction  at  law,'* 
unless  the  subject-matter  be  different  in  substance  from  what 
it  was  represented  to  be.  In  cases  where  a  contract  is  sought 
to  be  rescinded  on  the  ground  of  fraud,  it  is  enough  to  show 
a  fraudulent  representation  as  to  any  part  of  that  which 
induced  the  party  to  enter  into  the  contract  which  he  seeks 
to  rescind  ;  but  where  there  has  been  an  innocent  misrepresen- 
tation or  misapprehension,  it  does  not  authorize  a  rescission, 
unless  it  be  sucli  as  to  show  that  there  is  a  complete  difference 
between  what  was  represented  and  what  w^as  taken,  so  as  to 
constitute  a  failure  of  consideration.  For  example,  where  a 
horse  is  bought  under  a  belief  that  it  is  sound,  if  the  purchaser 
was  induced  by  a  fraudulent  representation  as  to  the  horse's 
soundness,  the  contract  may  be  rescinded.  If  it  was  induced 
by  an  honest  misrepresentation  as  to  its  soundness,  though  it 
may  be  clear  that  both  vendor  and  purchaser  thought  they 

'  Sus;.  L.  Prop.  660.  '  Tliom  ?).  Bin^land,  ih.,  infra. 

""  Haycral't  v.  Creasy,  2  East,  92  ;  Col-  "  Oniirod  v.  HuLli,  14  M.  &,  W.  651. 

lins  V.   Evans,   5  Q.  B.  820;  Thorn  v. 
Bigland,  8  Exch.  726. 


*  A  person  who  represents  an  article  to  be  good  as  far  as  he  knows, 
and  yet  conceals  facts  that  would  tend  materially  to  diminish  its  value 
in  the  estimation  of  the  purchaser,  is  guilty  of  affirmative  misrepresenta- 
tion    Wheelock  v.  Wheeler,  34  Vt.  533. 
5 


58  MISREPRESENTATION. 

were  dealing  about  a  sound  horse,  and  were  in  error,  jet  the 
purchaser  must  pay  the  whole  pi'ice,  unless  there  was  a 
warranty ;  and  even  if  there  was  a  warranty,  he  cannot  return 
the  horse  and  claim  back  the  whole  of  the  price,  unless  there 
was  a  condition  to  that  etiect  in  the  contract.  The  princij^le 
is  well  illustrated  by  the  civil  law  as  stated  in  the  Digest.^ 
There,  after  laying  down  the  general  rule  that  where  tlie 
parties  are  not  at  one  as  to  the  subject  of  the  contract  tliere  is 
no  agreement,  and  that  this  applies  where  the  parties  have 
misapprehended  each  other  as  to  the  co7'])us,  as  where  an 
absent  slave  was  sold,  and  the  buyer  thought  he  was  buying 
Pamphilus,  and  the  vendor  thouglit  he  was  selling  Stichus  ; 
and  pronouncing  the  judgment  that  in  such  a  case  thei'e  was 
no  bargain  because  there  was  error  in  corpore,  the  framers  of 
the  Digest  meet  the  point  thus :  "  Inde  quceritur  si  in  ipso 
corpore  non  erretur  sed  in  substantia  error  sit  ut  puta  si 
acetuin  pro  vino  veneat,  aes  pro  aiiro,  vel  quid  aliud  argento 
simile  ^  an  emptio  et  venditio  sit  ^  "  and  the  answers  given  by 
the  great  jurists  quoted  are  to  the  effect  that  if  there  be  a 
misapprehension  as  to  the  substance  of  the  thing,  there  is  no 
contract ;  but  if  it  be  only  a  difference  in  some  quality  or 
accident,  even  though  the  misapprehension  may  have  been  the 
actuating  motive  to  the  purchaser,  yet  the  contract  remains 
binding.  Paulus  says,  "  si  aes  pro  auro  veneat,  non  valet ^ 
aliter  atque  si  aurum  quidem  fuerit^  deterius  autem  quam 
emptor  estimaret  /  tunc  enim  emptio  valets  ^ 

The  principle  of  our  law  is  the  same  as  that  of  the  civil 
law.  If  the  thing  sold  differs  in  substance  from  what  the  pur- 
chaser was  led  by  the  vendor  to  believe  he  was  buying,  there 
is  no  contract.  In  Gompertz  v.  Bartlett,^  and  Gurney  v. 
Womersley,*  a  man  who  honestly  sold  what  he  thought  was  a 

'  Lib.   18,   De  contrahenda  emplione,  *  2  E.  <fe  B.  849. 

Tit.  1,  leg.  9,  10,  11.  *  iE.  &  B.  133. 

'  Kennedy  v.  Panama,  &c.  Co.,  L.  R. 
2  Q.  B.  5«7. 


MISREPRESEXTATIO:^.  HO 

bill  witlioii*^^  recourse  to  liim,  v.as  held  nevertheless  bouud  to 
return  the  price,  on  its  turning  out  that  the  supposed  bill  was 
void  under  the  stamp  laws  in  the  one  ease,  and  was  a  forgery 
in  the  other.^  So  also  where  cotton  was  sold  by  sample,  and 
the  sample  was  long  stapled  cotton,  but  the  cotton  delivered 
was  short  stapled  cotton,  the  cotton  was  held  to  be  different  in 
kind  from  what  the  purchaser  had  contracted  to  buy,  and  that 
he  was  entitled  to  reject  it.^  If,  on  the  other  hand,  the  pur- 
chaser receives  what  answers  the  description  of  the  article 
sold,  and  there  is  no  difference  in  substance  between  tlie  article 
delivered  and  the  article  sold,  but  only  a  difference  in  some 
quality  or  accident,  the  contract  remains  binding  in  the  absence 
of  a  warranty,  even  though  a  misapprehension  caused  by  the 
incorrect  representation  of  the  vendor  may  have  been  the 
actuating  motive  to  the  purchaser.^  In  such  a  case  the  rule 
caveat  emptor  will  apply.*  In  a  case,  accordingly,  where  a 
steam-packet  company  issued  a  prospectus  stating  in  effect  that 
they  had  entered  into  a  contract  with  a  colonial  government 
for  the  carrying  of  mails  between  certain  places,  and  a  man 
induced  by  the  terms  of  the  prospectus  applied  for  and  ob- 
tained some  of  the  shares,  but  the  contract,  not  being  binding 
on  the  colonial  government,  was  repudiated,  it  was  held  that 
the  representation  did  not  affect  the  substance  of  the  matter, 
the  applicant  having  actually  got  shares  in  the  very  company, 
for  sliares  in  wliich  he  had  applied,  and  the  shares  being  a 
property  of  considerable  value  in  the  market,  though  perhaps 
not  so  valuable  as  they  would  have  been  had  the  statement  in 
the  prospectus  been  strictly  accurate.^  The  difficulty  in  every 
case  is  to  determine  whether  the  mistake  or  misapprehension 


'  See  Flight  v.  Bootli,  1  Bin-   N.  C.  ■*  lb.     2  E.  &  B.  850,  j^n-  Lord  Camp- 

877.  bell. 

»  Azemar   v.  CiisiUa,   L.  U.  2   C.  V.  *  Konnotly  v.  Panama,  (fee.  Co.,  L.  R. 

677.  2  Q,  B.  5yu. 

'^  Kenne<ly  v.  P.iuama,  tfec.  Co.,  L.  R, 
2  Q.  li.  687. 


GO  MISRErRESENTATIOX. 

is  as  to  the  substance  of  the  whole  consideration,  going,  as  it 
were,  to  the  root  of  the  matter,  or  only  as  to  some  point,  even 
though  a  material  point,  an  error  as  to  which  does  not  affect 
the  substance  of  the  whole  consideration.  There  may  be  mis- 
apprehension as  to  that  which  is  a  material  part  of  the  motive 
inducing  the  transaction,  but  not  so  as  to  prevent  the  subject- 
matter  of  the  transaction  from  being  in  substance  what  it  was 
represented  to  be.^ 

The  same  principles  apply  in  equity.  A  man  who  makes 
a  representation  which  he  honestly  and  upon  reasonable 
grounds  believes  to  be  true,  or  believes  himself  entitled  to 
assert,  is  not,  independently  of  a  duty  cast  on  him  to  know 
the  truth,  bound  in  equity,  if  the  representation  turns  out  to 
be  untrue,  to  make  good  what  lie  has  so  represented.^  "  There 
is  no  case  in  equity,"  said  Lord  Thurlow,  in  Merewether  v. 
Shaw,®  "  where  a  man  making  an  honest  representation  when 
called  uj)on  to  give  an  account  of  the  circumstances  of  another, 
has  been  held  liable  in  this  respect  to  make  good  what  he  has 
so  represented."  From  certain  dicta  to  be  found  in  the  re- 
ports, it  may  appear  doubtful  whether  the  same  principles 
apply  in  equity  where  a  claim  is  made  for  the  restitution  of 
property  acquired  through  incorrect  representations  made  by 
honest  mistake.  In  Kawlins  v.  Wickham,'*  Turner,  L.  J.,  said 
that  if,  upon  a  treaty  for  purchase,  one  of  the  parties  to  the 
contract  makes  a  representation  materially  affecting  the  sub- 
ject-matter of  the  contract,  he  cannot  be  allowed  to  retain  any 
benefit  which  he  has  derived,  if  the  representation  proves  to 
be  untrue,  and  tliat  no  man  can  be  held  to  what  he  has  done 
under  circumstances  which  have  been  erroneously  represented 
to  him  by  the  other  party  to  the  transaction,  however  inno- 

'  Kennedy  v.  Panama,  &c.  Co.,  L.  R.       Ainslie  v.  Medlycott,  9  Ves.  21 ;  Evana 
2  Q.  B.  588.  t.  Wyatt,  31  Beav.  21Y. 

'  Merewether  v.   Shaw,  2  Cox,  134  ;  •  2' Cox,  134.  "  3  D.  <fe  J.  317. 


I^nSREPRESENTATION.  GL 

centlj  the  representation  may  Lave  been  made  ;  tliat  a  contrarj' 
doctrine  wonld  strike  at  the  root  of  fair  dealing,  and  would 
open  a  door  of  escape  in  all  cases  of  representation  as  to  credit, 
and  indeed  in  all  other  cases  of  false  representation.  The 
words  of  Mr.  Justice  Story,  in  Daniel  v.  Mitchell,^  are  much 
to  the  same  effect.  "  Nothing,"  he  said,  "  is  clearer  in  equity 
than  the  doctrine  that  a  bargain  founded  upon  false  representa- 
tions made  by  the  seller,  although  made  by  innocent  mistake, 
will  be  avoided.  Mistake  as  well  as  fraud  in  any  representa- 
tion of  a  fact  material  to  the  contract  is  a  sufficient  ground  to 
set  it  aside."  ^*  There  is,  however,  good  reason  to  doubt 
whether  on  principle  or  authority,  the  equitable  rule  with 
respect  to  the  restitution  of  property  acquired  through  folse 
representations  can  be  carried  so  far  as  the  words  of  these 
learned  judges  would  warrant.  In  Rav.'lins  v.  Wickham,  there 
was,  in  tact,  a  duty  cast  upon  the  party  making  the  representa- 
tion to  know  the  truth,  so  that  it  is  probable  that  the  words  of 
Turner,  L.  J.,  though  general  in  terms,  should  be  taken  with 

'  1  Story  (Amer.),  na.  (Amer.),  C91 ;  Doggett  v.  Emerson,  lb. 

*  Hou"h    V.    llicliardson,     3     Story       7o3. 


I 


*  The  gist  of  tlie  inquiry  is  not  whether  the  party  making  the  statement 
knew  it  to  be  false,  hut  whether  the  statement  made  as  true  was  believed 
to  be  true,  and,  therefore,  if  false,  deceived  the  party  to  whom  it  was 
made.  Joyce  v.  Taylor,  6  G.  &  J.  54 ;  Lewis  v.  McLcmon,  10  Yerg.  206 ; 
Donelson  v.  Clements,  Meigs,  155;  Bailey  v.  Jordan,  32  Ala.  50  ;  Oswold  v. 
McGehee,  28  Miss.  340 ;  ]\Iitchell  v.  Zimmerman,  4  Tex.  75  ;  Belknap  v. 
Sealey,  2  Duer,  570;  Smith  v.  Mitchell,  6  Geo.  458;  Lockbridge  v.  Foster 
et  al,  4  Scam.  5(>9;  David^on  v.  Moss,  5  How.  (Miss)  673;  Shackelfoid  v. 
Handley,  1  A.  K.  Marsh,  495;  McFerran  v.  Taylor,  3  Cranch,  270;  Hazard 
V.  Iiwin,  18  Pick.  95;  Bacon  v.  Johnson,  7  Johns.  Ch.  194;  Henderson  r. 
Railroad  Co.,  17  Tex.  560 ;  Roosevelt  r.  Fulton,  2  Cow.  129;  Smiths. 
Richards,  13  Pet.  20.  An  innocent  misrepresentation  by  mistake  will  only 
vitiate  a  contract  when  the  error  between  the  parties  is  of  such  a  nature 
and  character  as  to  destroy  the  consent  necessary  to  its  validity;  and  the 
rule  is  further  qualified,  so  that  it  does  not  embrace  cases  to  fl^hich  the  rule 
caveat  emptor  applies.     Brooks  c.  Hamilton,  15  Minn.  26. 


62  MISREPEESEl!lTATI0:5r. 

reference  to  tlie  particular  circumstances  of  the  case.  The 
rule  at  law  being  reasonable  and  fully  adequate  for  the  purposes 
of  justice,  there  is  no  reason  for  extending  the  rule  in  equity, 
60  far  as  the  words  of  Turner,  L.  J.,  would,  if  taken  generally, 
warrant.  There  is  no  ground  for  contending  that  the  rule 
caveat  emjytor  does  not  apply  in  equity  as  well  as  at  law,^  or 
that  a  representation  amounts  any  more  in  equity  to  a  warranty 
than  it  does  at  law.  The  sound  doctrine  would  seem  to  be 
that  the  rule  in  equity  is  the  same  as  the  rule  at  law,  and  that 
if,  accordingly,  a  representation  be  honestly  and  upon  fair  and 
reasonable  grounds  believed  to  be  true  by  the  party  making  it, 
and  there  be  no  duty  cast  on  him  to  know  the  truth,  no  claim 
for  the  restitution  of  property  acquired  through  the  representa- 
tion can  be  maintained  in  equity,  although  the  representation 
proves  to  be  untrue,^  unless  the  subject-matter  be  so  different 
in  substance  from  what  it  was  represented  to  be,  as  to  amount 
to  a  failure  of  consideration.' 

There  is  a  difference  in  substance  amounting  to  a  failure  of 
consideration,  if  the  property  is  not  of  the  same  nature  or 
description  as  it  was  represented  to  be  in  the  particulars  of 
sale,*  as  where  leasehold  or  copyhold  property  is  described  as 
freehold;^  or,  perhaps,  where  an  under  lease  is  sold  as  an 
original  lease;'  or  as  where  upon  the  sale  of  an  estate  let  at 
lease  on  a  rack-rent,  such  rent  is  described  as  a  ground-rent;' 
or  where  there  is  a  misdescription  of  the  quantity  of  land  in 
regard  to  acres  being  statute  acres  or  customary  acres ; '  or  as 

>  Gorsiich  V.  Cree,  29  L.  J.  C.  P.  309.  »  Drewe  v.  Corp,  9  Ves.  SOS;    Puls- 

'  t^ee  Leg2:e  v.  Croker,  1  Ba.  <fe  He.  ford  )•.  llicliards,  17  Beav.  90,  per  Lord 

514;  Jiartlctt  v.  Salmon,  6  D.  M.  &.  G.  r.onully. 

33.  «  Madeley  v.  Booth,  2  Des;.  &  S.  718 , 

*  See  Ilowland  v.  Norris,  1  Cox.  50;  Henderson  v.  Hudson,  15  W.  R.  800. 
Leslie  7'.  Thompson,  9  lla.  208;  Burt-  See  Dariinffton  r\  Hamilton,  Kay,  550." 
le:t  1'.  Salnum,  0  D.  M.  <fe  G.  41.  ^  Stewart  v.  Alliston,  1  Mcr.  20.    See 

*  See  Taylor  v.   jMartin.l.de,  1   Y.  &  Bartlett  v.  Salmon,  0  D.  M.  &  G.  33. 
C.  C.  C.  058  ;  Madeley  r.  Bootfi,  2  Dcg.  "  Price  v.  Xorth,  2  Y.  <fe  C.  020  ;  Earl 
&  S.  722;   Stanton  v.  Tattersall.  1  Sin.  of  Durham!'.  Le^.ird,  34  Beav.  612. 

&  G.  530 ;  Price  v.  Macaulay,  2  D.  M. 
&  G.  340. 


MISEEPEESENTATIOX.  63 

where  a  house  composed  externally  partly  of  brick,  and  partly 
of  timber,  and  lath  and  plaster,  is  described  as  a  brick-built 
house.* 

So,  also,  there  is  a  difference  in  substance  amounting  to  a 
failure  of  consideration,  if  there  be  misrepresentation  upon 
a  point  material  to  the  due  enjoyment  of  the  property;  as 
where  a  vendor  describes  land  as  situated  within  one  mile  of 
a  particular  town,  when  it  is,  in  fact,  several  miles  distant 
therefrom;^  or  where,  upon  the  sale  of  a  lease  of  a  house  or 
shop,  the  particulars  merely  stated  that  the  lease  contained  a 
restriction  against  certain  specified  trades  being  carried  on 
upon  the  premises,  whereas,  in  fact,  several  other  trades  were 
forbidden ;  ^  or  where,  upon  the  sale  of  a  piece  of  laud  de- 
scribed as  "a  first-rate  building  plot  of  ground,"  no  notice 
was  taken  of  a  right  of  way  passing  over  it,*  or  of  an  under- 
ground watercourse  which  third  parties  had  liberty  to  open, 
cleanse,  and  repair,  making  satisfaction  for  damage  therebj' 
occasioned;®  or  as  where  a  house  described  to  be  situated 
in  a  fashionable  street,  was  not  actually  in  that  street,  but 
merely  communicated  with  it  by  a  passage.^ 

So,  also,  there  is  a  difference  in  substance  amounting  to  a 
failure  of  consideration,  w^here  the  property-,  as  described,  is 
not  identical  with  that  intended  to  be  sold ; ''  or  where  a  mate- 
rial part  of  the  property  described  has  no  existence,  or  cannot 
be  found;®  or  where  no  title  can  be  shown  to  it,  as  where 
upon  the  sale  of  a  leasehold  house  and  small  yard  adjoining, 
the  yard  was  not  included  in  the  lease,  but  was  held  from  year 

'  Powell  V.  Doubble,  Sug.  V.  <t  ?.  29  Sec  Gibson  v.  D'Este,  2  Y  <fe  C  C  C 

Dart,  V.  &  P.  90.  542. 

"  Duke  ol'Norrdlki).  Wortliv,  1  Camp.  *  >liacldeton  v.  Sutdifle,  I  De"-  <fe  S 

337;  I'ulsford  v.  Richards,  17  lieav.  96.  G09.                                                 ° 

per  Lord  Koinilly.  °  Stanton  v.  Tattersall,   1  Sm.  &  G. 

'  Fli-iit  r.  Booth,  1  Binc^.  K  C.  370.  529;     cump,  White   v.   Bradshaw,    16 

See  Viguo.les  v.  Brown,  12  Ir.  Eq.  194,  Jur.  738.     See  Dart,  V.  &  I".  88,  89. 

196.  '  Leach  V.  Wullctt,  3  C.  (fc  P.  115. 

*  Pykes  V.  Blake,  4  Biug.  N.  C.  403.  *  Uobinson  v.  Mus-rove,  2  Moo.  (fe  R. 

92. 


64  MISREPRESENTATION. 

to  year  at  a  separate  rent ;  ^  or  wliei'c  land  was  described  in 
tlie  particulars  of  sale  as  held  nuder  a  lease  tliat  Avould  expire 
on  a  certain  day,  but  it  turned  out  that  tbe  tenant  of  part  of 
the  land  was  entitled  under  an  equitable  article  to  a  reversion- 
ary term  for  four  lives  ;^  or  where  an  annuity  was  granted,  to 
be  calculated  on  a  certain  footing  by  the  agent  of  the  grantee, 
and  the  calculation  proved  very  inaccurate  ;  ^  or  where  a  man 
agreed  to  purchase  a  share  in  a  partnership  businesss,  on  the 
footing  of  a  balance-sheet  prepared  by  an  accountant  employed 
by  the  vendor,  which  turned  out  to  be  very  inaccurate  in  certain 
particulars ;  ^  or  where  there  was  a  material  variance  between 
the  prospectus  of  a  company,  on  the  basis  of  which  a  man 
took  shares  in  the  concern,  and  the  memorandum  of  association 
by  which  it  was.  governed ; '  or  where  a  man  was  released 
from  an  obligation,  in  which  he  was  bound,  on  a  representa- 
tion that  a  certain  security  deposited  with  the  creditor  (which ' 
proved  to  be  an  imaginary  one)  was  a  good  security.^ 

So,  also,  it  may  be  laid  down,  as  a  general  rule,  that  there 
is  a  difference  in  substance  amounting  to  a  failure  of  consider- 
ation, if  the  misrepresentation  or  misdescription  is  of  such  a 
nature  that  the  amount  of  compensation  cannot  be  estimated ;' 
as  where  on  the  sale  of  a  reversion  expectant  on  the  decease  of 
A  in  case  he  should  have  no  childreUj  his  age  was  described 
as  sixty-six,  instead  of  sixty-four;^  or  as  where  On  the  sale  of 
a  wood,  the  particulars  erroneously  stated  that  the  average  size 
of  the  timber  approached  fifty  feet,  the  number  of  trees  not 


'  Dobell  V.   TTutchinson,   3   A.  A  A.  '  Sliip's   Case,    2   J).   J.   &  S.    544 ; 

355.      See  KnalclibuU   v.    Gnieber,    1  Stewart's  Case.  L.  R.  1  Cli.  Avp.  586; 

Madd.  153;  M'Cullock  v.  Gregory,  1  K.  Lawrence's  Case,  2,  ib.  425  :  Hallows  v 

&  J.  286.  Fcrnie,  L.  11.  3  Eq.  534. 

"Linehan  v.  Cotter,  7  Ir.   Eq.   177.  '  «c-lio!field   v.  Teinpler,  4  D.    &  J. 

See  Collier  ».  Jcukius,  You.  2".)S  ;   Sii;^.  4:M. 

V.  cfe  1'.  3U4.  "  ^00  Maeldey  v.  Booth,  2  .T)o£^.  ct  S. 

'  Carpinacl  v.  Powis,  10  Beav.  4A.  722. 

*  Chavlcswortli  v.  Jennings,  34  Ik-av.  °  Sherwood  v.  Rohblns.  Moo.  dc  M. 

96.  194.     See  8  CI.  &  F.  7'.»2. 


MISREPRESENTATION.  05 

being  stated ;  *  or  as  where  tlie  particulars  stated  tlie  premises  to 
be  in  tlie  joint  occupation  of  A  &  B  as  lessees,  wlicn  in  fact 
A  was  only  assignee  of  tlie  lease,  and  B  was  a  mere  joint 
occupier ;  ^  or  as  where  the  right  to  coal  mider  the  estate  was 
shown  to  be  in  other  parties,  and  no  means  existed  of  deter- 
mining its  value.^ 

The  presence  of  the  words  "  more  or  less "  in  a  contract 
for  the  sale  of  a  deed  of  conveyance  of  laud  after  a  statement 
of  the  Cjuantitj  of  acres  comprised  therein  does  not  import  a 
special  engagement  that  the  purchaser  takes  the  risk  of  the 
quantity.  The  words  must  be  taken  merely  to  cover  a  reason- 
able excess  or  deficiency.  If  it  turn  out  that  the  quantity  falls 
considerably  short  of  what  it  was  represented  to  be,  the  com't 
will  relieve  the  purchaser  from  payment  for  the  deficiency; 
but  a  slight  variation  does  not  afford  a  ground  for  relief,*  * 

'  Lord    Brooke  v.   Roundtliwaite,    5  v.  Wincli ester,  1  V.   tfe  B.  375 ;    Port- 

Ha.  298.  man   v.  Mill,  2  Paiss.  570,  Sug.  V.  &  P. 

'  Kidgway  v.  Gray,  1  Mac.  &  G.  109.  324.     See  Charlcsworth  v.  Jennings,  3-t 

See  Grisseli  v.  Peto,  2  Sm.  &  (}  39.  Beav.  9d  ;    L)avi3  v.  Shepherd,  L.  R.  1 

«  Sniithson  v.  Powell,  20  L.  T.  105.  Cb.  App.  410. 

*  UilJ  V.  Bulkley,  17  Yes.  398 ;  Winch 


*  Pollock  V.  Wilson,  3  Dana,  25  ;  Quesncl  r.  Woodlief,  2  Hen.  &  ]Munf. 
173;  S.  C.  6  Call.  218;  Read  v.  Cramer,  1  Green,  Ch.  277;  Belknap  v. 
Sealey,  14  K  Y.  143  ;  Smith  r.  Fly,  24  Tex.  345  ;  Harrell  v  Hill,  19  Ark. 
102;  Uarrisou  v.  Talbot,  2  Dana,  258;  Bailey  v.  Snyder,  13  S.  &  R.  K'.O ; 
Tliomas  v.  Perry,  1  Pet.  C.  C.  49 ;  Noble  v.  Googins,  99  Mass.  231 ;  Tarbell 
r.  Bowman,  103  Mass.  341. 

Where  land  is  sold  in  gross,  for  a  sum  certain,  upon  a  statement  of  the 
number  of  acres,  quantity  must  be  regarded  as  a  material  consideration 
with  the  vendee.     Marbury  v.  Stonestreet,  1  j\Id.  147. 

The  use  of  the  words  "  more  or  less,"  does  not  preclude  an  inquiry 
into  a  fraud  that  may  have  been  committed  by  either  party  to  a  contract, 
M'Coun  V.  Dclaney,  3  Bibb.  4G  ;  Harrell  v  Hill,  19  Ark.  102. 

The  words  "  more  or  less,"  import  that  quantity  did  not  enter  into  the 
essence  of  the  contract,  and,  in  the  absence  of  fraud,  neither  party  can 
claim  relief  either  for  a  deficiency  or  a  surplus.  Tysou  v.  Hardcsty  20  Md. 
305  ;  Slothower  v.  Gordon,  23  Md.  1 ;  Hall  v.  Mayhew,  15  Md.  551 ;  Hart  v. 
Stull,  3  Md.  Ch.  20  ;  S.  C.  9  Gill.  451 ;  McCrea  v.  Leonstrelh,  17  Peun. 
316  ;    Marvin  v    Bennett,  8  P?-'ge,  312 ;    S.  C.  26  Wend.  160 ;    Young  v. 


66  MISREPRESENTATION. 

Nor  will  the  court  interfere,  although  the  deiiciency  be  con- 
sidei-able,  if  the  risk  as  to  the  quantity  constituted  one  of  the 
elements  of  the  agreement,  or  if  the  sale  was  of  a  thing  in 

Craig,  2  Bi1)b.  372  ;  Weaver  v.  Carter,  10  Lsigli,  37  :  Cleaveland  v.  Rogers, 
1  A.  K.  Marsh,  193 ;  Williford  v.  Galbraith,  6  Watts,  117 ;  Perkins  v. 
Webster,  2  N.  H.  287 ;  Wicker  v.  Creas,  1  Ired.  Eq.  351 ;  Pedeus  v.  Owens, 
Rice's  Eq.  55 ;  Ketchum  v.  Sloat,  20  Ohio,  453 ;  Cliipman  v.  Briggs,  8  Cal. 
76  ;  Powell  v.  Clark,  5  Mass.  355. 

The  Tvords  "  more  or  less,"  or  other  equivalent  words,  should  be  con- 
strued to  qualify  representations  of  quantity  in  such  a  manner  that,  if 
made  in  good  faith,  neither  party  should  be  entitled  to  any  relief  on 
account  of  deficiency  or  surplus.  Stcbbins  v.  Eddy,  4  Mason,  414  ;  Jones 
©.Plater,  2  Gill.  128. 

A  parol  contract  of  sale,  at  a  certain  price  per  acre,  is  so  fiir  varied  and 
modified  by  a  subsequent  acceptance  of  a  deed  with  the  words  "  more  or 
less,"  that  the  number  of  acres  does  not  form  the  basis  of  the  ultimate 
conveyance,  but  tlTe  land  is  purchased  upon  an  assumed  estimate,  and  at  a 
gross  sum.     Smith  v.  Evans,  6  Binn.  182 ;  Stebbins  v.  Eddy,  4  Mason,  414. 

Far  too  much  significance  has  been  sometimes  allowed  to  these  and 
similar  words.  Their  primaiy  use  is  to  show  that  all  the  land  embraced 
within  the  description,  is  intended  to  pass,  and  in  that  sense  they 
are  often  important  in  the  construction  of  an  instrument.  They  may  be 
decisive  upon  the  question  of  how  much  consideration  is  to  be  paid,  or  of 
mere  compensation  where  actual  mistake  does  not  appear.  And  where 
misrepresentation  and  mistake  are  claimed,  they  certainly  qualify  the  state- 
ment of  quantity,  which  the  instrument  otlierw'se  imports.  A  deed  which 
describes  the  land,  and  states  the  number  of  acres,  although  with  (he 
words  "  more  or  less,"  clearly  imports  that  there  is  not  a  great  deficiency 
or  excess.  If  the  deficiency  is  one  half,  the  instrument  carries,  on  its  face, 
a  gross  misrepresentation.  Such  words  do  not  import  that  there  is  a 
special  engagement  that  the  purchaser  shall  take  the  risk  of  the  quantity. 
Their  presence  in  a  contract  or  deed  may  render  it  more  difficult  to  prove 
such  a  mistake  as  will  justify  the  interference  of  equity,  but  they  are  not 
equivalent  to  a  stipulation  that  the  mistake,  Avhen  ascertained,  shall  not 
be  a  ground  for  relief     Belknap  «.  Sealey',  14  N.  Y.  143. 

The  deficiency  must  be  such  as  will  naturally  raise  the  presumption  of 
fraud,  imposition,  or  mistake  in  the  very  essence  of  the  contract.  Stebbins 
c.  Eddy,  4  Mass.  414. 

When  the  metes  and  bounds  are  pointed  out,  the  purchaser  takes  the 
risk  of  the  quantity.  Grantland  v.  Wright,  2  Munf  179 ;  Dalton  i).  Rust, 
22  Tex.  133. 

When  the  deficiency  is  considerable,  the  contract  may  be  set  aside  for 
misrepresentation,  although  the  sale  is  in  gross.  Pringle  v.  Samuel,  1 
Litt.  43 ;  Kent  v.  Carcaud,  17  Md.  291. 


MISREPEESENTATIOX.  67 

gross  and  not  hy  admeasurement,*  or  if  there  was  a  special 
stipulation  that  the  quantities  shall  be  taken  as  stated.'*  ^ 

Though  a  party  making  a  representation  may  at  the  time 
believe  it  to  be  true,  and  have  made  it  innocentl}^,  yet  if  after 
discovering  that  it  was  untrue  he  suffers  the  other  party  to 
continue  in  error,  and  to  act  on  the  belief  that  no  mistake  has 
been  made,  this,  from  the  time  of  the  discovery,  becomes,  in 
the  contemplation  of  a  court  of  equity,  a  fraudulent  misrepre- 
sentation, even  though  not  so  originally.^  If,  moreover,  a  man 
makes  a  representation  by  which  he  induces  another  to  take  a 
particular  course,  and  the  circumstances  are  afterwards  altered 
to  the  knowledge  of  the  party  who  made  the  representation, 
but  not  to  the  knowledge  of  the  party  to  whom  the  represent- 
ation was  made,  and  ai-e  so  altered  that  the  alteration  may 
affect  the  course  of  conduct  which  may  be  j^ursued  by  the 
party  to  whom  the  representation  was  made,  it  is  tlie  duty  of 
the  party  who  has  made  the  representation  to  communicate  to 
the  party  to  whom  he  made  it,  the  altej'ation  of  those  circum- 
stances. The  party  to  whom  the  representation  has  been 
made,  will  not  be  held  bound  in  equity,  unless  such  a  com- 
munication has  been  made.^ 

In  considering  whether  a  man  has  reasonable  grounds  for 
believing  a  representation  to  be  true,  the  position  in  which  he 
is  placed,  and  the  sources  from  which  he  has  drawn  his 
information,  must  be  taken  into  consideration."  If  a  man  be 
asked  to  give  an  account  as  to  tlie  fortune  or  circumstances  of 
another,  statements  appearing  in  wills,  deeds,  marriage  settle- 
ments, &c.,  are  reasonable  sources  of  information.     lie  cannot 

'Anon.,   2  Freem.  lOY;    Twyfor.l  v.  See  Sus;.  V.  &  P.  324,  327;  Cordingley 

Warcnp,    Finch,    310;     Baxendale    v,  i'.  Cliecseboroufrli,  3  Giff.  50(>. 
Peak,  19  I'.eav.  (501 ;  Stebl)uis  v.  Eddy,  '  Reynell  v.  Sprye,  1  D.  M.  &  G.  6G0, 

4  Mas.  ( Amer  )  414  ;  Marvin  r.  15ennett,  709. 

26  Wend.   (Anier.)  169  ;    Morris  L'anal  *  Trailli'.  Baring,  33  L.  J.  CIi.  521. 

Co.    V.    Emmett,   9  Taigc  (Amcr.)  108.  '  Callcn's  Trustee  v.  Jolinston,  3  Dec. 

See  Loslio  v.  Tompson,  9  Ha.  208.  of  Court  of  Sesision,  3d  series,  p.  936, 

'  Nicoll  V.  Chambers,   11  C.  B.   996. 


08  MISREPEESE^irTATION. 

be  called  on  if  the  statements  therein  appearing  turn  out  to 
be  incorrect,  to  make  good  his  representation.^  A  man,  how- 
ever, mn3t  examine  into  tlie  truth  of  representations  made  to 
liim  bj  others,  before  putting  them  forward  as  true,  or  as  ot 
his  own  knowledge.  If  a  man  makes  a  representation  in  such 
a  manner  as  to  import  a  knowledge  of  the  facts  to  which  the 
representation  refers,  and  the  representation  is  not  materially 
qualified  by  a  reference  to  any  other  person  as  the  source  of 
information,  he  cannot  be  heard  to  say,  on  a  claim  for  the 
rescission  of  the  transaction,  if  the  representation  proves  to  be 
untrue,  that  he  made  the  representation  on  the  authority  of 
his  agent,  and  honestly  believed  it  to  be  true.  If  a  company 
give  credit  to,  and  assume  as  true  the  reports  which  are  made 
to  them  by  their  agents,  and  represent  as  facts  the  matters 
stated  in  those  reports,  and  pei'sons  are  induced  to  enter  into 
contracts  on  the  foundation  of  the  assumption  of  the  repre- 
sentations which  have  been  made  to  them,  they  cannot  be 
heard  to  say,  on  a  claim  for  a  rescission  of  the  transaction,  if 
the  representations  prove  to  be  untrue,  that  they  honestly 
believed  them  to  be  true.  If  the  company,  instead  of  stating 
a  thiug  as  a  fact,  state  merely  that  they  have  received  reports 
from  their  agents,  and  that  they  have  reason  to  believe  the 
reports  to  be  true,  the  case  may  be  difierent.^  It  may  be 
material,  where  proceedings  at  law  are  aimed  against  a  man 
with  a  view  to  obtain  damages  from  him  personally  for  false 
representations,  that  he  may  have  believed  statements  made  to 
him  by  agents  to  be  true,  but  it  is  immaterial  where  the  trans- 
action is  sought  to  be  set  aside.^ 

A  misrepresentatio7i,  however,  is  a  fi-aud  at  law,  altliough 
made  innocently,  and  with  an  honest  belief  in  its  truth,  if  it 

*  Ainslie   v.  Mecllvcott,  9  Ves.   21  ;  L.  R.  3  Fq.  138;  Henderson  v.  Lacon, 

Evans  v.  Wyatt,  31  Beav.  217.  L.  R.  5  Eq.  261, 

^  Sniitli's  Case.  Re  Reese  River  Silvci*  '  Smith's  Case,  Re  Reese  River  Silver 

Milling  (.o.,  L.  R.  2  CIi.  App.  004,  611,  Minin^-   Co.,    L.    R.   2   Ch.   App.   615j 

615;  Rosa  v.  Estates  Invcstincnt  Co.,  Henderson  v.  Lacon,  L.  R.  5  Eq.  261. 


MISREPKESEI^TATION.  69 

be  made  bj  a  man  who  ought  in  tlie  due  discharge  of  iiis  duty 
to  have  known  the  truth,  or  who  formerly  knew,  and  ought  to 
have  remembered,  the  fact  which  negatives  the  representation, 
and  be  made  under  sitch  circumstances  or  in  such  a  way  as  to 
induce  a  reasonable  man  to  believe  that  it  was  true,  and  was 
meant  to  be  acted  on,  and  has  been  acted  on  by  him  accord- 
ingly to  his  prejudice.  If  a  duty  is  cast  upon  a  man  to  know 
the  truth,  and  he  makes  a  representation  in  such  a  way  as  to 
induce  a  reasonable  man  to  believe  that  it  is  true,  and  is  meant 
to  be  acted  on,  he  cannot  be  heard  to  sa}^,  if  the  representation 
proves  to  be  untrue,  that  he  believed  it  to  be  true,  and  made 
the  misstatement  through  mistake,  or  ignorance,  or  forget- 
fulness.^ 

A  statement  which  amounts  to  a  warranty,  must  be  dis- 
tinguished from  a  statement  which  amounts  merely  to  a  repre- 
sentation. A  representation  is  a  statement  or  assertion  made 
by  one  party  to  the  other  before  or  at  the  time  of  the  contract 
of  some  matter  or  circumstance  relating  to  it.^  A  representa- 
tion is  not  a  part  of  the  written  instrument,  but  is  collateral  to 
it,  and  entirely  independent  of  it.^  The  insertion  of  the 
representation  in  the  instrument  does  not  alter  its  nature. 
Though  a  representation  is  sometimes  contained  in  a  written 
instrument,  it  is  not  an  integral  part  of  the  contract,  and  con- 
sequently the  contract  is  not  broken,  though  the  representation 
proves  to  be  untrue.*  In  order  that  a  statement  or  representa- 
tion may  amount  to  a  warranty,  it  must   appear   that  it  was 

*  Burrowes  v.   Lock,    10  Ves.   470;  misconception,    a   false    representation 

Moens  v.  Heyworth,  10  ]\I.  <fe  W.  147;  respecting  his  sister's  fortune  to  a  man 

Piilsford    V.    Kiehiirds,    17    Beav.    95 ;  -wlio  was  about  to  marry  her,  and  did 

Ayre's  Case,  25  Beav.  522;    J'rice  v.  afterwards  marrj^  her.  See,  also,  Ainsiie 

Macaulav,  2  D.  M.   &  G.  345 ;  Ilutton  v.    I^Iedlycott,    9   Ves.    21;     Evans   v. 

V.  Rossiter,  7  D.  M.  &  G.  9 ;  Rawlins  Fowler,  '21  Beav.  217. 

V.  Wickham,   3  D.  «fc  J.  304 ;  Slim  v.  ^  Behn  v.  Burness,  3  B.  <fe  S.  753. 

Croucher,   1   D.  F.   <fe  J.  523;  Swan  v,  '  Ooram  v.  Sweeting,  2  Wms.  Saund. 

North  British  Australian  Co.,  2  H.  <fe  201.     See  Kain  v.  Old,  2  B.  &  C.  634, 

C.  183;  Henderson  v.   Lacon,  L.  R.  5  per  Lord  Tenterden;  Cornfooty.  Fowke, 

Eq.  202  ;  comp.  Merewether  v.  Shaw,  2  6  M.  <fe  W.  370,  per  Lord  Cranworth. 

Cox,  134,  where  a  brother  made,  through  *  Behn  v.  Burness,  3  B.  tfe  S.  763. 


70 


MISREPRESENTATION. 


intended  tc  form  a  substantive  part  of  the  contract.^  *  A 
warranty  is  an  express  or  implied  statement  of  something 
which  the  party  making  it  undertakes  shall  be  a  substantive 
part  of  the  contract,  and  though  part  of  the  contract,  yet  col- 
lateral to  the  express  object  of  it.^  A  representation  of  inten- 
tion does  not  amount  to  a  warranty.^  If  a  representation  or 
statement  is  not  of  the  essence  of  the  contract,  there  is  no 
warranty.*  The  circumstance  of  a  man  selling  a  particular 
thing  by  its  proper  description  is  not  a  warranty  that  the 
thing  is  of  that  description.  If  the  thing  does  not  answer  the 
description,  there  is  not  a  breach  of  warranty,  but  a  non- 
compliance with  a  contract  which  he  has  engaged  to  fulfil," 
To  constitute  a  warranty,  it  is  not  necessary  that  the  word 
"warrant"  should  occur  in  the  bargain.®  Nor  is  it  necessary 
that  the  statement  or  representation  should  be  simultaneous 
with  the  close  of  the  bargain.  If  it  be  part  of  the  contract,  it 
matters  not  at  what  period  of  the  negotiation  it  was  made.' 
If  a  statement  amounts  to  a  warranty,  the  party  making  it  is 
bound  by  his  warranty.  The  fact  that  he  may  have  made  the 
statement  in  honest  mistake,  or  that  the  statement  may  be  not 
in  a  material  matter,  cannot  be  taken  into  consideration.^ 


^  Belm  r'.  Burness,  3  B.  <fe  S.  lU. 

» Chanter  v.  Hopkins,  4  M.  &  W. 
404,  per  Lord  Abinc^er ;  Stucley  v. 
Baily,  1  H.  &  C.  415,  per  Mnrtin,  B. 

'  JBenliam  v.  United  Guarantee,  ifec. 
Assurance  Co.,  7  Exch.  744. 

*  Cranston  v.  Marshal,  5  Exch.  402; 
Taylor  v.  Bullen,  ?6.  779 ;  Vernede  v. 
AVeber,  1  H.  &  N.  311. 

'  Chanter  v.  Hopkins,  4  M.  &  W. 
404,  per  Lord  Abinger ;  Stucley  v. 
Baily,  1  H.  «fe  C.  415,  j^er  Martin,  B. 


*  Hopkins  v.  Tanqneray,  15  C.  B. 
137,  per  Jervis,  C.  J.;  Stucley  v.  Bally, 
1  H.  &  C.  417. 

'  Hoiikins  v.  Tanqueray,  15  C.  B. 
137,  ■/  cr  Jervis,  C.  J. 

"  Attwood  V.  Small,  6  CI.  &  Fin.  232; 
Anderson  v.  Fitzgerald,  4  II.  L.  504, 
per  Lord  Cranwortli ;  rfinnennan  v. 
White,  10  C.  B.  N.  S.  814;  Behn  v. 
Buruess,  3  B.  &  S.  754,  759. 


*  In  order  to  constitute  a  warranty  no  particuLar  form  of  words  is 
necessary.  The  word  warrant  need  not  be  used.  A  bare  representation 
or  assertion,  if  so  intended  and  understood  by  the  parties,  will  amount  to 
a  warranty.  But  no  matter  how  positive  the  representation  of  tlie  vendor 
may  be,  it  will  be  regarded  as  an  expression  of  his  belief  or  opinion, 


MISREFEESEXTxVTION.  71 

The  term  "warranty"  is  used  in  two  senses.     It  is  citlicr 
a  condition  on  the  failure  or  non-performance  of  which  the 
other  party  may,  if  he  be  so  minded,  repudiate  the  contract 
altogether,  and  so  be  released  from  perfonning  his  part  of  it, 
or  it  is  an  independent  agreement,  a  breach  of  which  will  not 
justify  a  repudiation  of  the  contract,  bnt  will  only  be  a  cause 
of  action  for  compensation  in  damages.    The  question  whether 
a  statement,  though  intended  to  be  a  substantive  part  of  the 
contract,  is  a  condition  precedent,  or  an  independent  agree- 
ment, is  sometimes  raised  in  the  construction  of  charter-parties, 
with  reference  to  stipulations  that  some  future  thing  shall  be 
done  or  shall  happen,  and  has  given  rise  to  very  nice  distinc- 
tions.    Thus  a  statement  that  a  vessel  is  to  sail,  or  be  made 
ready  to  receive  a  cargo,  on  or  before  a  given  day,  has  been 
held  to  be  a  condition,  while  a  stipulation  that  she  shall  sail 
with  all  convenient  speed,  or  within  a  reasonable  time,  has  been 
held  to  be  only  an  agreement.^     If  the  statement  be  a  condi- 
tion, and  it  be  not  complied  with,  the  par'iy  to  whom  it  is 
made  may,  if  he  be  so  minded,  repudiate  the  contract,  pro- 
vided it  has  not  been  partially  executed  in  his  favor.      If, 
indeed,  he  has  received  the  whole  or  any  substantial  part  of 
the  consideration  for  the  promise  on  his  part,  the  warranty 
ceases  to  be  available  as  a  condition,  and  becomes  a  warranty 
in  the  narrower  sense  of  the  term,  that  is  to  say,  a  stipulation 
by  way  of  agreement,  for  the  breach  of  which  a  compensation 
may  be  sought  in  damages.     Accordingly,  if  a  specific  thing 
has  been   sold,  with  a  warranty  of  its  quality,  under   such 
circumstances  that  the  property  passes  by  the  sale,  the  vendee 
having  been  thus  benefited  by  the  partial  execution  of  the 

•  Behn  v.  Burness,  3  B.  &  S.  754. 


unless  it  was  intended  and  received  as  a  stipulation.     Barnett  v.  Stanton. 
2  Ala.  181 ;  Endor  v.  Scott,  13  IlL  35. 


72  .  1MISREPKESENTATI05I. 

contract,  and  become  tlie  proprietor  of  tlie  tiling  sold,  cannot 
treat  the  failure  of  the  warranty  as  a  condition  broken  (unless 
there  is  a  special  condition  to  that  effect  in  the  contract),  but 
must  have  recourse  to  an  action  for  damages  in  respect  of  the 
breach  of  warranty.  But  in  cases  where  the  thing  sold  is  not 
specific,  and  the  property  has  not  passed  by  the  sale,  the 
vendee  may  refuse  to  receive  the  thing  proffered  to  him  in 
performance  of  the  contract,  on  the  ground  that  it  does  not 
correspond  with  the  descriptive  statement,  or,  in  other  words, 
that  the  condition  expressed  in  the  contract  has  not  been  per- 
formed. Still,  if  he  receives  the  thing  as  sold,  and  has  the 
enjoyment  of  it,  he  cannot  afterwards  treat  the  descriptive 
statement  as  a  condition,  but  only  as  an  agreement,  for  a 
breach  of  which  he  may  bring  an  action  for  damages.-^ 

Affirmations  in  policies  of  insurance  are  in  the  nature  of 
warranties.  Jn  the  case  of  policies  of  marine  insurance,  and 
policies  against  fire,  a  warranty  is  also  a  condition.  It  is  an 
implied  condition  of  the  validity  of  the  policy,  that  the  party 
proposing  the  insurance  should  make  a  true  and  complete 
representation  respecting  the  property  which  he  seeks  to 
insure.  Such  policies  are  therefore  vitiated  by  any  material 
misrepresentations,  even  though  not  fraudulently  made.^  In 
the  case  of  life  assurances,  however,  it  is  not  an  implied  condi- 
tion of  the  validity  of  the  policy  that  the  party  proposing  the 
insurance  should  make  a  true  and  complete  representation 
respecting  the  life  proposed  for  insurance.  If  there  be  no 
express  warranty  or  condition  on  the  part  of  the  insured,  a 
policy  of  life  assurance  is  not  vitiated  by  false  representations, 
unless  there  be  fraud.^  If  there  be  a  proviso  in  a  policy  of 
assurance,  that  any  untrue  statements  shall  avoid  the  policy, 

'  Betn  V.  Burness,  3  B.  &  S.  755.  Thornton,  3  E.  &  B.  868 ;  Stokes  v.  Cox, 

'Carter   v.   Boelim,    3   Burr.    1903;  1  11.  &  N.  533;  Bannerman  2).  White, 

Moeu3  V.  Heyworth,  10  M.  it  W.  157,  10  C.  B.  N.  S.  860. 

per  Lord  Wensleydale ;    Anderson  v.  ^  Wheelton  v.   Hardisty,  8  E,  (fr  B, 

Fitzgerald,    4    H.   L.   484;    Sillem   v.  2Z2,  infra. 


MISREPEESEJfTATION.  73 

the  policy  is  vitiated  bj  any  statement   lalse  in  fact,  whether 
material  or  not.^ 

In  order  that  a  misrepresentation  may  snpport  an  action  at 
law,  or  be  of  any  avail  whatever  as  a  ground  for  relief  in 
equity,  it  is  essential  that  it  should  be  material  in  its  nature,^* 
and  should  be  a  determining  ground  of  the  transaction.^  f 
The  misrepresentation  mnst,  in  the  language  of  the  Homan 
law,  be  dolus  dans  locum  contractui.^  There  must  be  the 
assertion  of  a  fact  on  which  the  person  entering  into  the  trans- 
action relied,  and  in  the  absence  of  which  it  is  reasonable  to 
infer  that  he  would  not  have  entered  into  it  at  all,^  X  or  at 
least  not  on  the  same  terms.®  Both  facts  must  concur ;  there 
must  be  false  and  material  representations,  and  the  party  seek- 
ing relief  should  have  acted  upon  the  faith  and  credit  of  such 

*  Anderson  v.  Fitzq^eralrl,  4  H.  L.  liave  contracted.  Incidental  or  acci- 
484;  Gazenove  v.  British  Equitable  dental  fraud  is  that  by  which  a  man. 
Assurance  Co.,  6  C.  B  N.  S.  437  ;  otherwise  intending  to  contract,  is  de- 
comp.  Perrins  v.  Marine,  <fec.  Insurance  ceived  as  to  sonic  accessory  or  accident 
Co.,  2  El.  &  El.  317.  of  tlic  contract;  for  example,  as  to  the 

'  Jennings  v.  Broughton,  5  D.  M.  <fe  quality  of  the  object  of  sale  or  its  price. 

G.  12t).     See  Geddes  v.  Pennington,  5  The  determination  of  the  question  as  to 

Dow.  159.  the  character  of  the  dolus  rests  in  each 

'  Merewether  v.   Shaw,   2  Cox,  134;  particular  case  with  the  court.     Acci- 

De  Manneville  v.  Crompton,  1  V.  &  B.  dental    or   incidental    fraud    is   not   a 

854;  Jameson   v.    Stt-in,    21    Beav.    9;  ground  for  avoiding  a  transaction,  but 

Robson  V.  Earl  of  Devon,  4  Jur.  N.  S.  simply  subjects  the  party  to  an  action 

245,  248 ;    Goldicutt  v.  Townsend,   28  for  damages,  Duranton,  vol.  X,  liv.  3, 

Beav.  445;  Jennings  v.  Broughton,  5  s.  169;  Toull.  Di-.  Civ.,  liv.  3,  tit.  3.  c. 

D  M.  &  G.   136;  Denne  v.  Light,  8  D.  2,  s.  5,  art.  90;  Bedarride,  sur  Dol.  p. 

M.  &  G.  774.  45.    This  distinction  does  not  obtain  in 

*  Fraud  is  divided  by  the  civilians  the  common  law,  and  is  not  admitted  in 
into   dolu!^   dans,    locum  contradui   and  equitj'. 

dolus  inc'dcns,  or  accidental  fraud.  The  ^  Pulsford  v.   Richards,  17  Beav.  81, 

former  is  that  wliich  has  been  the  cause  96. 

or  determining  motive  of  the  transac-  "  6  M.  <fe  W.  378,  per  Lord  Abingcr. 

tion ;    that,   in    other   words,   without  See  Small  v.  Attwood,  You.  461. 
which  the  party  defrauded  would  not 


*  Smith  r.  Richards,  13  Pet.  2G  ;  Coffee  v.  Newsom,  2  Kelly,  443 ;  Mc- 
Donald V.  Trafton,  15  Me.  325 ;  Cunningham  v.  Smith,  10  Graft.  255 ;  Gil- 
lett  V.  Phelps,  12  Wis.  392 ;  Taylor  v.  Fleet,  1  Barb.  479. 

t  Morris  Canal  Co.  v.  Eramett,  9  Paige,  168 ;  Winston  v.  Gwathmey,  8 
B.  Mon.  19;  Halls  «.  Thompson,  1  Smed.  &  Marsh,  443. 

I  Daniel  v.  Mitchell,  1   Story,  172;  Hazard  v.  Irvin,  18  Pick.  95;  Brad- 
ley V.  Bosley,  1  Barb.  125. 
6 


74  MISREPRESENTATION. 

representations.^*  To  say  that  statements  are  false  is  one 
thing;  to  say  that  a  man  was  deceived  by  them  to  enter  into  a 
transaction  is  another  thing.^f  A  misrepresentation  to  be 
material  must  be  one  necessarily  influencing  and  inducing  the 
transaction,'':}:  and  affecting  and  going  to  its  very  essence  and 
substance.*  Misrepresentations  which  are  of  such  a  nature  as, 
if  true,  to  add  substantially  to  the  value  of  property,'  or  are 
calculated  to  increase  substantially  its  apparent  value,®  are 
material.  A  misrepresentation  goes  for  nothing  unless  it  is  a 
proximate  and  immediate  cause  of  the  transaction,'''  It  is  not 
enough  that  it  may  have  remotely  or  indirectly  contributed  to 
the  ti'ansaction  or  may  have  supplied  a  motive  to  the  other 
party  to  enter  into  it.  The  representation  must  be  the  very 
ground  on  which  the  transaction  has  taken  place.  The  trans- 
action must  be  a  necessary  and  not  merely  an  indirect  result  of 
the  representation.^  It  is  not  however  necessary  that  the 
representation  should  have  been  the  sole  cause  of  the  trans- 
action.    It  is  enough  that  it  may  have  constituted  a  material 

*  Hough  V.  Richardson,  3  Story  Conybeare,  9  H.  L.  711 ;  Barrett's  Case, 
(Araer.  )rC90,  per  Story,  J.  3  D.  J.  <fc  S.  30.    See  Geddes  v.  Penning- 

"Jennings  v.  Broughton,  5  D.  M.  <fe  ton,  5  Dow.  159. 

G.  126.  "  Burnes  v.  Pennell,  2  IT.  L.  497,  531 ; 

'  Re  Reese  River  Silver  Mining  Co.;  Nicoll's  Case,  3  D.  &  J.  387.  439;  Bar- 
Smith's  Case,  L.  R.  2  Ch.  App.  611.  ry  v.  Crosskey,  2  J.  <fe  H.  1 ;  New  Bruns- 

*  Hallows  V.  Fcrnie,  L.  ]!.  3  Eq.  536.  wick  &c.  Railway  Co.  v.  Conybeare,  9 

*  Price  w.  Macaulay,  2  D.  M.  k  G.  344 ;  H.  L.  71 1.  See  Atwood  v.  Small,  6  CI. 
Jennings  v.  Broughton,  5  1).  M.  »fc  G.  <fe  Fin.  232,  447;  Jameson  v.  Stein,  21 
126.  Beav.  5 ;  Robson  v.   Earl  of  Devon,  4 

«  SmalW'.  Attwood,  You.  461;  Dim-  Jur.  K  S.  245;   Wheelton  w.  Hardisty, 

mock  V.  Ilallett,  L.  R.  2  Cii.  App.  27.  8  E.  <fe  B.  232 ;  Smith  v.  Kay,  7  H.  L 

'Barry  v.   Crosskey,  2  J.   <fe  H.  1;  750,775. 
New   Brunswick,   <i:c.  Railway   Co.    v. 


*  McDonald  v.  Trafton,  15  Me.  225. 

The  representations  need  not  be  the  sole  inducement.  It  is  sufficient 
if  the  party  would  not  have  entered  into  the  contract  if  the  false  represen- 
tations had  not  been  made.     Shaw  «.  Stine,  8  Bosw.  157. 

t  Clark  r.  Everhart,  C3  Penn.  347;  Boyce  v.  Watson,  20  Geo.  517. 

I  Morgan  r.  Suapp,  7  Ind.  537;  Hill  v.  Bush,  19  Ark.  532;  Yeates  ». 
Prior,  6  Eng.  58. 


MISREPRESENTATION.  75 

inducement.  If  any  one  of  several  statements,  all  iu  their 
nature  more  or  less  capable  of  leading  the  party  to  whom  they 
are  addressed  to  adopt  a  particular  line  of  conduct,  be  untrue, 
the  whole  transaction  is  considered  as  having  been  fraudulently 
obtained,  for  it  is  impossible  to  say  that  the  untrue  statement 
may  not  have  been  precisely  that  which  turned  the  scale  in  the 
mind  of  the  party  to  whom  it  was  addressed.^  A  man  who 
has  made  a  false  representation  in  respect  of  a  material  matter 
must,  in  order  to  be  able  to  rely  on  the  defence  that  the  trans- 
action was  not  entered  into  on  the  faith  of  the  representation, 
be  able  to  prove  to  demonstration  that  it  was  not  relied  on.^ 
It  is  not  enough  for  him  to  say  that  there  were  other  represen- 
tations by  which  the  transaction  may  have  been  induced  ;3  nor 
can  he  be  heard  to  say  what  the  other  party  would  have  done, 
had  no  misrepresentation  been  made/ 

A  misrepresentation  to  be  of  any  avail  whatever  must 
enure  to  the  date  of  the  transaction  in  question.'  If  a  man 
to  whom  a  representation  has  been  made,  knows  at  the  time, 
or  discovers  before  entering  into  a  transaction,  that  the  repre- 
sentation is  false,**  or  resorts  to  other  means  of  knowledge 
open  to  him,  and  chooses  to  judge  for  himself  in  the  matter, 
he  cannot  avail  himself  of  the  fact  that  there  has  been  mis- 
representation, or  say  that  he  has  acted  on  the  faith  of  the 
representation.^  f     Where,  accordingly,  an  iron  company  had 

'  Rej^ncll  J'.  Sprve,  1  D.  M.  &  G.  708 ;  Smith  >'.  Kay,  1  H.  L.  750,  110;  TraiU 

Jennings  v.  Brou'shton,  6  D.  M.  &  G.  v.  Baring,  33  L.  J.  Ch.  521,  527. 

126;  (  larlce  r.  Liekson,  6  C.   B.  N.  S.  Mrvine  v.  Kiikpatrick,  7  Bell,  Sc. 

453 ;  Pmitli  v.  Kmv,  7  II.  L.  750,  775.  Ap.  186. 

2  Rawlins  v.  Wirkliam.  3  D.  <fe  J.  :^04 ;  *  lo.  ;  Yi>j:eva  v.  Pike,  8  CI  &  Fin. 

Nic( ill's  Case,  ib.  337;  Smith  ?•.  Kay,  7  650;  Lord  Bn  oke  v.  Roundtliwaite,   5 

II   L.  7  0  775;  Kisch  i'.  Central  Ven-  Ha.  208,  306;  Nelson  v.   Slocker,  4  D. 

ezuel.i  Railway  Co.  3  D.  J.  &  S.  122.  &  J.  465. 

*  Kicoll's  case,  3  D.  <fc  J.  387.  439.  ''  Lvsnev  v.  Sclby,  2  Lord  Raj-mcmd, 

Mleynell  «.  Sprye.lD.  M.  it  G.  660;  1118,  1120;   like  v.  Yigers,  2  Dr.    <fe 


*  Andereon  v.  Buniett,  5  How.  (3Iiss.)   ICo  ;  Hughes  v.  Sloan,  2  .Ark 

lie. 

t  IJough  V.  Rich:irdson,  3  Story,  6j:);  Ver.sey  ».  Doton,  3  Allen,  380  — 


70 


MISREPRESENTATIOJr. 


sent  some  of  their  directors  for  the  express  purpose  of  verify- 
ing the  representations  of  a  man  respecting  his  works,  who 
expressed  their  satisfaction  with  the  proofs  produced,  it  was 
held  that  the  company  had,  by  choosing  to  judge  for  them- 
selves in  the  matter,  precluded  themselves  from  being  able 
to  say  that  they  had  been  deceived  by  the  representations  of 
the  vendor,  and  that  it  was  their  own  fault  if  they  had  not 
availed  themselves  of  all  the  knowledge,  or  means  of  knowl- 
edge, open  to  tliem.-^  So,  also,  where  a  man  had,  before 
purchasing  shares  in  a  mine,  visited  the  mine  and  examined 
into  its  condition,  it  was  held  that  he  had  not  relied  on  repre- 
sentations made  to  him  by  the  vendor,  and  was  not  entitled 
to  avoid  the  contract,  on  the  ground  that  they  were  false,  the 
alleged  misstatements  being  such  as  he  was  competent  to 
detect,^  "  Cases,"  said  Lord  Langdale,  in  Clapham  v.  Shilleto,^ 
"  frequently  occur  in  wbich,  upon  entering  into  contracts, 
misrepresentations  made  by  one  party  have  not  been  in  any 
degree  relied  on  by  the  other.     If  the  party  to  whom  the 


Wal.  261 ;  Clarke  v.  Macintosh,  4  GifF. 
134.  See  Farebrother  v.  Gibson,  1  D. 
&  J.  602. 

'Attwood  V.  Small,  6  CI.  &  Fin. 
232. 

'■'  Jennings  v.  Broughton,  1*7  Beav. 
234,  5  D.  M.  &  G.  126.  See  Lowndes 
V.  Lane,  2  Cox,  363 ;  Vigers  v.  Pike,  8 


CI.  &  Fin.  562,  650;  Robson  v.  Lord 
Devon,  4  Jui-.  N.  S.  245 ;  Haywood  v. 
Cope,  25  Beav.  148;  Kelson  v.  Stoc-ker, 
4  1).  &  J.  465;  New  Brunswick  <fec. 
Railway  Co.  v.  Conybeare,  9  H.  L.  711, 
730. 

'  1  Beav.  149. 


The  representation  must  have  been  honestly  confided  in.  Casey  v.  Allen, 
1  A.  K.  Marsh,  465. 

A  person  is  not  bound  by  a  representation  so  clearly  and  obviously 
diifering  frorc  the  fact,  that  every  person  having  the  use  of  the  common 
organs  of  sensation  must  know  it  to  be  erroneous ;  for  reliance  is  to  be 
jilaced  upon  the  knowledge  which  these  ofier,  rather  than  upon  the  state- 
ments of  any  one.     Irving  v.  Thomas,  18  Me.  418. 

If  the  misrepresentation  renders  the  examination  less  perfect  and  full, 
or  makes  the  statements  of  the  party  to  be  in  part  confided  in,  as  in  respect 
to  details,  extending  personal  inquiry  only  to  general  matters  and  general 
appearances,  the  fraud  vitiates  the  whole  contract.  Mason  v.  Crosby,  1 
Wood  &  Mir.  342 ;  Smith  v.  Babcock,  2  Wood  «fc  Min.  246. 


MISEEPEESENTATION.  77 

representations  were  made,  himself  resorted  to  the  proper 
means  of  verification  before  entering  into  the  contract,  it 
may  appear  that  he  relied  on  the  results  of  his  own  inves- 
tigation and  inquiry,  and  not  upon  the  representations  made 
to  him  by  the  other  party ;  ^  *  or  if  the  means  of  investigation 
and  verification  be  at  hand,  and  the  attention  of  the  i)arty 
receiving  the  representation  be  drawn  to  them,  the  circum- 
stances of  the  case  may  be  such  as  to  make  it  incumbent  on 
a  court  of  justice  to  impute  to  him  a  knowledge  of  the  result, 
which,  upon  due  inquiry,  he  ought  to  have  obtained,  and 
thus  the  notion  of  reliance  on  the  representation  made  to  him 
may  be  excluded.*  f  Again,  when  we  are  endeavoring  to 
ascertain  what  reliance  has  been  placed  on  representations, 
we  must  consider  them  with  reference  to  the  subject-matter, 


'  See  Lowndes  v.  Lane,  2  Cox,  363 
Pickering  v.  Dowson,  4  Taunt.  779 
Attwood   V.   Small,   6  CI.  &  Fin.   232 


D.  M.  &  G.  126 ;  Farebrother  v.  Gibson, 
1  D.  &  J.  602 ;  Clark  i;.  Macintosh,  4 
Giff.  143  ;  New  Brunswick  &c.  llailway 


Jennings  v.  Broughton,  17  Btav.  234,  5  Co.  v.  Coiiybeare,  9  II.  L.  711 ;  Hough 

D.  M.  &  G.  126;  Haywood  v.  Cope,  25  v.  Richardson,   3  Story  (Amer.),  691  ; 

Beav.    140;    Hough   v.   Richardson,  3  Doggett  w.  Emerson,  »6.  733  ;  Mason  w. 

Story  (Amer.)  691 ;  Doggett  v.  Emer-  Crosby,  1   Wood   &   M.   (Aicer.)  342 ; 

son,  ib.  733  ;  Mason  v.  Crosby,  1  Wood.  Johnson  v.  Taber,  6  Seld.  (Amer.)  319; 

<fe  M.  (Amer.)  342.  Gordon  v.  Parmelee,  2   Allen  (Amer.) 

^  See  Lowndes  v.  Lane,  2  Cox,  363 ;  214. 
Jennings  v.  Broughton,  17  Beav.  231,  5 


*  Halls  V.  Thompson,  1  Smed.  &  Mar.  443 ;  Perkins  v.  Rice,  6  Litt. 
218. 

t  There  is  no  misrepresentation,  if  the  fact  is  one  of  which  every  man 
is  equally  capable  of  judging  for  himself.  Bell  v.  Henderson,  6  How. 
(Miss.)  311 ;  Mississippi  Uni(m  Bank  v.  Wilkinson,  3  Smed.  &  Mar.  78. 

A  purchaser  is  bound  to  exercise  ordinary  prudence  and  discretion, 
and  if  the  means  of  knowledge  are  within  his  power,  and  he  neglects  to 
make  the  proper  inquiry,  he  loses  his  remedy  against  the  vendor  for  any 
fraudulent  representation  the  latter  may  make.  Bell  v.  Bycrson,  11  low^a, 
233  ;  Schermerhoru  v.  George,  13  Abb.  Pr.  315  ;  White  v.  Seaver,  25  Barb. 
235  ;  Burton  v.  Willers,  6  Litt.  32. 

Where  a  party  is,  from  the  circumstances,  induced  to  rely  upon  the 
representations  of  the  vendor,  he  may  rescind  the  contract,  although  the 
means  of  obtaining  information  were  open  to  him.  Mattock  v.  Todd,  19 
Ind.  130. 


78  MISREPRESENTATION. 

and  the  relative  knowledge  of  the  parties.  If  the  subject  is 
capable  of  being  accurately  known,  and  one  party  is,  or  is 
supposed  to  be,  possessed  of  accurate  knowledge,  and  the 
other  is  entirely  ignorant,  or  has  not  equal  means  of  knowl- 
edge, and  a  contract  is  entered  into,  after  representations 
made  by  the  party  who  knows,  or  is  supposed  to  know, 
without  any  means  of  verification  being  resorted  to  by  the 
other,  it  may  well  enough  be  presumed  that  the  ignorant 
man  relied  on  the  statements  made  to  him  by  him  who  was 
supposed  to  be  better  informed ;  ^  *  but  if  the  subject  is  in 
its  nature  uncertain,  if  all  that  is  known  is  matter  of  infer- 
ence from  something  else,  and  if  the  parties  making  and 
receiving  representations  on  the  subject  have  equal  knowledge 
and  means  of  acquiring  knowledge,  it  is  not  easy  to  presume 
that  the  representations  made  by  the  one  would  have  much,  or 
any,  influence  on  the  other,"  ^  f 

The  allegation  of  misrepresentation  may  be  effectually  met 
by  proof  that  the  party  complaining  was  well  aware  and 
cognizant   of  the   real   facts   of   the  case,  but   the  proof  of 

'  See    Ly?ney   v.    Selby,    2    Lord  ^  See  Lowndes  v.  Lane,  2  Cox,  363  ; 

Ra^^n.   1118-1120;  Lowndes  v.  Lane,  Harris  v.  Kemble,  1  Sim.  Ill,  5  Bligh, 

2  Cox,  363;  Edwards  v.  M'Cleay,  2  Sw.  730;  Attwood  v.  Small,   6  CI.  &  Fin. 

289;  Vernon  v.  Keys,   12   East'^  637,  4  232;  Knight  v.   Marjoribanks,    2  H.  <fe 

Taunt.  488  ;  Martin  v.  Cotter,  3  J.  <fe  L.  Tw.   316;   Jennings  v.  Broughton,   17 

506  ;  Reynell  v.   Sprye,   1  D.  M.  &  G.  Beav.  234,  5D.  M.  <fe  G.  126;  Haywood 

660 ;  Price  v.  Macaulay,  2  D.  M.  <k  G.  v.  Cope,  25  Beav.  140 ;  Clai-ke  v.  Macin- 

339 ;  Rawlins  v.  Wickham,  3  D.  <fe  J.  tosh,  4  Giff.   143 ;  National  Exchange 

3ii4;  Strangways  v.   Bishop.  29  L.  T.  Co.  v.  Drew,  23  Dec.  of  Ct.  of  Session, 

120;  Higgins  v.  Saniels,  2  J.  <t  11.  460 ;  2d  series,  p.  1 ;  Hough  v.  Richardson,  3 

Warner    v.   Daniels,    1    Wood.    &   M.  Story  (Amer.)  691 ;  Johnson r.  Taber,  6 

(Amer.)  90  ;  Mason  v.  Crosby,  2  Wood.  Seld.  (Amer.)  319. 
&  M.  (Amer.)  353. 


*  Picard  13.  McCorraick,  11  Mich.  68;  Harvey  v.  Smith,  17  Ind.  372 ; 
Nowlan  v.  Cain,  3  Allen,  261 ;  Beard  v.  Campbell,  2  A.  K.  Marsh,  125 ; 
Karcissa  v.  Wathan,  2  B.  Mon  241 ;  Spence  v.  Whitaker,  3  Port.  297. 

t  Halls  V.  Thompson,  1  Smed.  &  Mar.  443  ;  Strong  ».  Peters,  2  Root, 
03  ;  Glasscock  v.  Minor,  11  Mo.  655  ;  Fallon  v.  Hood,  34  Penn.  365  ;  Farrar 
p.  Alston,  1  Dev.  69 ;  Saunders  «.  Hatterman,  2  Ired.  32;  Moore  v.  Turbe- 
ville,  2  Bibb.  602. 


MISREPRESENTATION.  79 

knowledge  must  be  clear  and  conclusive.  A  man  who,  by 
misrepresentation  or  concealment,  has  misled  another,  cannot 
be  heard  to  say  that  he  might  have  known  the  truth  by  proper 
inouiry  ;  but  must,  in  order  to  be  able  to  rely  on  the  defence 
that  he  knew  the  representation  to  be  untrue,  be  able  to  estab- 
lish the  fact  upon  ineontestible  evidence,  and  beyond  the 
possibility  of  a  doubt.^  * 

If  the  subject-matter  is  not  property  in  this  country,  where 
probably  independent  inquiry  would  be  made  and  inspection 
might  take  place,  but  property  at  such  a  distance  that  any  per- 
son purchasing  it  is  obliged  to  rely  on  the  statement  made  with 
respect  to  it,  the  argument  is  the  stronger  that  reliance  has 
been  placed  on  the  representations.^  f  If  a  definite  or  particu- 
lar statement  be  made  as  to  the  contents  of  property,  and  the 
statement  be  untrue,  it  is  not  enough  that  the  party  to  whom 
the  representation  was  made  may  have  been  acquainted  with 

'  Dyer  v.  Hargrave,  10  Ves.   505 ;  Venezuela   Railway   Co.    3   D.  J.  <fe  S. 

Harris  v.  Kenible,  5  Bligh,  730;  Vigers  122  ;  Central  Railway  of  Venezuela  Co. 

V.  rike,  8  CI.  <fe.  Fin.  562,  050;   Wilson  v.   Kisch,   L.  R.  2  App.  Ca.    114;  Law- 

V.  Sliort,  6  Ha.  366,  375  ;   Sliackleton  ^;.  Fence's  Case,  L.  II.  2  Cii.  App.  422.    See 

Sutcliffe,   1   Deg.  <fe  S.   609 ;  Martin  v.  Nelson  v.  Stocker,  4  D.  <fe  J.  465. 
Cotter,  3  J.  &  L.  496,  506 ;  Reynell  v.  '  Smith's  Case;  Re  Reese  River  Sil- 

Sprye,  8  Ha.  257  ;  Price  v.   MacauLiy,  ver  Mining  Co.,  L.  R.  2  Ch.  App.  614. 
2  I>.  M.  &  Q.  339 ;  Kisch  v.   Central 


*  Boyce  v.  Grundy,  3  Pet.  210  ;  Young  v.  Harris,  2  Ala.  108  ;  Clapton 
t,  Cogart,  3  Smetl.  &  Mar.  363 ;  Connersville  i\  Wadleigli,  7  Blackf.  103  ; 
Anderson  v.  Burnett,  5  How.  (Miss.)  165. 

The  rule  that  there  is  no  reliance  where  the  means  of  information  are 
equally  open  to  both  parties,  does  not  apply  to  misreprescntaiions  where- 
by a  surety  obtains  his  release  from  a  bond.  Hoitt  v.  Holcomb,  33  N.  H. 
185. 

t  Wherever  a  sale  is  made  of  property  not  present  but  at  a  remote  diS' 
tance,  which  the  vendor  knows  the  purchaser  has  never  seen,  I.)ut  which 
he  buys  upon  the  representation  of  the  vendor,  relying  on  its  truth,  then 
the  representation  in  etl'cct  amounts  to  a  warranty ;  at  least  that  the  vendor 
is  bound  to  make  good  the  representation.  Smith  «.  Richards,  13  Pel.  26  ; 
Babcock  v.  Case,  61  Penn.  437 ;  Spalding  v.  Hedges,  2  BaiT,  240 ;  Miner  v. 
llcdhuvj,  6  Wis.  205 ;  Beau  v.  Hcrrick,  12  Me.  202 ;  Camp  v.  Camp,  3 
Ala.  632. 


80  MISREPRESENTATION. 

tlie  pi'opertj.  A  very  intimate  knowledge  witli  the  premises 
will  not  necessarily  imply  knowledge  of  their  exact  contents, 
while  the  particularity  of  the  statement  Avill  naturally  convey 
the  notion  of  exact  admeasurement.^  The  fact  that  he  had  the 
means  of  knowing  or  of  obtaining  information  of  the  truth 
which  he  did  not  use  is  not  sufficient.^  It  is  not  indeed  enough 
that  he  may  have  been  wanting  in  caution.  A  man  who  has 
made  false  representations,  by  which  he  has  induced  another  to 
enter  into  a  transaction,  cannot  turn  round  on  the  person  whom 
he  has  defrauded  and  say  that  he  ought  to  have  been  more 
prudent  and  ought  not  to  have  concluded  thvi  representations 
to  be  true  in  the  sense  which  the  language  used  in  the  pros- 
pectus naturally  and  fairly  imports.^  ISTor  is  it  enough  that 
there  may  be  circumstances  in  the  case  w^hich,  in  the  absence 
of  the  representation,  might  have  been  sufficient  to  put  him 
on  inquiry.  The  doctrine  of  notice  has  no  application  where  a 
distinct  representation  has  been  made.  A  man  to  whom  a 
particular  and  distinct  representation  has  been  made  is  entitled 
to  rely  on  the  representation  and  need  not  make  any  further 
inquiry,  although  there  are  circumstances  in  the  case  from 
which  an  inference  inconsistent  witli  the  representation  might 
be  drawn.*  He  is  not  bound  to  inquire  unless  something  has 
happened  to  excite  suspicion,^  or  unless  there  is  something  in 
the  case  or  in  the  terms  of  the  representation  to  put  him  on 
inquiry.^     The  party  who  has  made  the  representation  cannot 


» Hill  V.  Bncldev,  17  Ves.  394.     See  dale  v.  Mace,  2  Sm.  &  G.  225,  230,  5  D. 

Kin;^  V.  Wilson,  6  Beav.  124.  M.  A  G.  103 ;  Cox  v.  Midilleton,  2  Drew. 

"  Lysncj'   v.    Selby,    2   Lord   Raym.  209;  Grosvenor  v.   Green,  5  Jxir.  N.  S. 

1118,"ll20;  Dobellw.  Stevens,  3B.  (feC,  117;  Rawlins  v.  Wickliam,  3  D.  &  J. 

623;  Rawlins  w.  Wickliam,  3  D.   &  J.  318;  Kisch  r.  Central  Venezuela  Rail 

319.  -way  Co.,  3  D.   J.   &   S.    122;   Smitli  i>. 

'  New  Brunswick  (fee.  Railway  Co.  v.  Reese  River  Silver  Mining  Co.,  L.  R.  2 

Mutrueridge,  1  Dr.  &  Sm.  382.  Eq  264. 

^  Grant  v.  Muiit,  Coop.  173  ;  Van  v.  ^  Rawlins  v.  Wickham,  3  D.  <fe  J.  304. 

Corpe,  3  M.  &  K.  269 ;  Flight  v.  Barton,  See  Farebrother  v.  Gibson,   1  D.  <fe  J. 

ib.  282;  Dobell  v.  Stevens,  3  B.  cfe  C.  602. 

623;  Pope  v.  Garland,  4  Y.  &  C.  394;  «  Kent  v.  Freehold  Land  and  Brick 

Wilson  V.  Short,  6  Ha.  366,  377  ;  Drys-  making  Co.,  L.  R.  4  Eq.  598. 


MISREPRESENTATION.  81 

be  allowed  to  say  that  he  told  liim  where  further  information 
was  to  be  got,  or  recommended  liim  to  take  advice,  and  even 
put  into  his  hands  the  means  of  discovering  the  truth.  How- 
ever negligent  the  party  may  have  been  to  whom  the  incorrect 
statement  has  been  made,  yet  that  is  a  matter  affording  no 
ground  of  defence  to  the  other.  No  man  can  complain  that 
another  has  relied  too  implicitly  on  the  truth  of  what  he  him- 
self stated.'  If  a  vendor  has  stated  in  his  proposals  the  value 
of  the  property,  he  cannot,  except  under  special  circumstances, 
complain  that  the  purchaser  has  taken  the  value  of  the  prop- 
erty to  be  such  as  he  represented  it  to  be.^  The  effect  of  what 
would  be  otherwise  notice  may  be  destroyed  not  only  by  actual 
misrepresentation  but  by  anything  calculated  to  deceive  or 
even  to  lull  suspicion  upon  a  particular  point.^  *  A  vendor  of 
property  on  lease,  for  instance,  is  not  justified  in  parading  upon 
his  particulars  of  sale  the  existence  of  covenants  beneficial  to 
the  estate  which  he  knows  or  has  good  reason  to  believe  cau 
not  be  enforced.* 

The  maxim  caveat  emptor  does  not  apply  where  there  is  a 
positive  misrepresentation,  essentially  material  to  the  subject 
in  question,  provided  proper  diligence  be  used  by  the  pur- 
chaser in  the  course  of  the  transaction.^  The  rule  at  least  of 
caveat  emptor,  where  there  is  misrepresentation,  if  applicable 

'  Rcynpll  V.  Sprye,  1  D.  M.  &  G.  660,  Darlington    v.    Hamilton,    Kay,    550 

710;  llinvlins  ?>.  Wickham,   3  D.  &  J.  Smith  v.   Harrison,  20  L.   J.   Cli.  412 

.'^IS;  Smith  !'.  Reese  River  Silver  Min-  Sheard  i'.  Venables,  36  L.   J.  Ch.  922 

ins;  Co.,  L.  R.  2  Eq.  264 ;  Colby  w.  Gads-  Dart,  V.  <fe  P.  75. 
den,  15   W.  R.    1185.     See   Harris  v.  ■*  Flint  c.  Woodin,  9  Ha.  618. 

Kemble.  5  Bligh,  730.  *  Lowndes    v.    Lane,    2    Cox,    363  ; 

^  Perfect  V.  Lane,  3  D.  F.  &  J.  309.  Robsoa  v.  Earl  of  Devon,  4  Jur.  N.  S. 

3  Dykes  v.  Blake,  4  Bing.  N.  C.  403;  245. 
Bartlett  v.  Salmon,  6  D.  M.   »fc  G.  41 ; 


*  Camp  ».  Camp,  2  Ala.  633  ;  Parham  ®.  Randolph,  4  How.  (Miss.)  435. 
When  the  misrepresentation  relates  to  tlie  title,  the  fact  that  the  deed 
is  on  record  is  immaterial.     Parham  v.  Randolph,  4  How.  (Miss.)  435 


82  MISHEPKESENTATION. 

at  all,  must  be  applied  with  great  caution.'*  Nor  will  a  con- 
dition in  particulars  of  sale  that  misdescriptions  or  errors  in 
particulars  of  sale  shall  not  annul  the  sale  cover  a  fraudulent 
misrepresentation.' 

A  misrepresentation,  to  be  material,  should  be  in  respect 
of  an  ascertainable  fact,  as  distinguished  from  a  mere  mattei 
of  opi:iion.3f  A  representation  which  merely  amounts  to  a 
statement  of  opinion,  judgment,  probability,  or  expectation,  or 
is  vague  and  indefinite  in  its  nature  and  terms,  or  is  merely  a 
loose,  conjectural,  or  exaggerated  statement,  goes  for  nothing, 
though  it  may  not  be  true,  for  a  man  is  not  justified  in  placing 
reliance  on  it.**  :j:  An  indefinite  representation  ought  to  put 
the  person  to  whom  it  is  made  upon  inquiry.^  If  he  chooses 
to  put  faith  in  such  a  statement,  and  abstains  from  inquiry,  he 
has  no  ground  of  complaint.^     Mere  exaggeration  is  a  totally 

>  Colby  V.  Gadsden,  15  W.  R.  1185.  &  G.  134;  Iliggins  v.  Samels,  2  J.  (fe  H. 

"  Duke    of    Norfolk    v.    Worthy,    1  464 ;  Leyland  v.  Illingwortli,  2  D.  F.  & 

Camp.  337  ;    Fenton  v.  Brown,  14  Ves.  J.  248. 

144;    Stewart  v.  Alliston,  1  Mer.   26;  *  Ilaycraft    v.   Creasy,    2   East,    92; 

Trower    v.   Newconibe,    3    Mer.    704;  Drysdale  v.   Mace,  5  D.  M.  <fe  G.  107; 

Shackleton   v.   Sutcliffe,    1    Deg.  &   S.  Kisch  v.  Central  Venezuela  Railway  Co. 

609;    Leslie   v.    Tompson,  9  Ha.  273.  3  D.J.  &  S.  122;    Deuton    v.  ISlarneil, 

See  Edwards  v.  Wickwar,  L.  R.  1  Eq.  L.  R.  2  Eq.  352 ;    Dimmock  v.  Ilallet, 

68.  L.  R.  2  Ch  App.  27. 

'  Lvsney   v.    Selby,    2   Lord  Raym.  *  Lord   Brooke   v.   Roundtlnva'te,    5 

1118;'   Brunton  v.  Lister,  3  Atk.  386;  Ha.  304;    Dimmock  v.  Hallett,  L.  R.  2 

Vernon  v.  Keys,  12  East,  632,  4  Taunt.  Ch.  App.  27. 
448 ;    Jennings  v.  Broughton,  5  D.  M.  *  Jb. 


*  The  line  'wbicli  seiDarates  cases  where  the  rule  of  caveat  emptor 
applies  from  others  which  call  for  relief,  is  not  defined  with  entire  pre- 
cision. Each  one  will  rest,  in  some  measure,  upon  its  peculiar  circumstances. 
Bean  «.  Ileirick,  13  Me.  263;  Piingle  v.  Samuel,  1  Litt.  43. 

t  Davis  V.  Meeker,  5  Johns.  354 ;   Manney  v.  Porter,  3  Humph.  347. 

X  Payne  t.  Smith,  20  Geo.  G34;  Foley  r.  Cowgill,  6  Blackf  18;  Turner 
V.  Navigation  Co.  3  Dev.  Ch.  336 ;  Halls  v.  Thompson,  1  Smed.  &  Mar. 
443. 

A  failure  in  a  speculation  does  not  constitute  giound  for  relief.  Tur- 
ner v.  Navigation  Co.  3  Dev.  Ch.  236. 

A  misrepresentation  which  is  calculated  to  put  common  prudence  oflf 
its  guard,  is  sufficient.     Bean  v.  Herrick,  13  Me.  363. 


MISEEPRESEXTATION".  83 

different  thing  from  misrepresentation  of  a  precise  or  definite 
fact.^  *  Such  statements,  for  instance,  as  assertions  as  to  the 
value  of  property,^  or  representations  hy  the  agent  of  the  ven- 
dor of  land  that  the  title  is  good,^  or  mere  general  terms  of 
commendation,'*  or  mere  general  and  exaggerated  statements 
as  to  the  profits  and  prospects  of  a  company,^  or  as  to  the 
value  of  securities,^  or  as  to  the  situation  of  property,'  or  me)-e 
loose,  conjectural,  or  exaggerated  assertions  with  respect  to  a 
subject  matter,  which  is  a  matter  of  speculation,  or  is  essen- 
tially of  an  uncertain  nature,^  or  mere  conjectural  estimates,' f 
are  only  exj)ressions  of  opinion  or  judgment,  as  to  which 
honest  men  may  well  differ  materially.     Mere  general  asser- 

'  Higgins  V.  Samels,  2  J.  <k  H.  464;  wood  v.  Cope,  25  Beav.  140;    Higgina 

Ross  V.  Estates  Investment  Co.  L.  R.  3  v.  Samels,  2  J.  <fe  H.  460. 

Eq.  136.  *  New   Brunswick,  <fec.,  Railway  Co. 

^Harvey   v.  Young,  Yelv.  20 ;    Baily  v.    Conybeare,   9   H.  L.  711;    Kisch  v, 

V.  Merrell,   3  Bnlst    94  ("ro.  Jac.   386  ;  Central  Venezuela  Railway  Co.  3  D.  J. 

Jendwine  v.  Slade,  2  Esj).  572;  Ingram  <fe  S.  122;    Denton  v.  Macneil,  L.  R.  2 

V.  Thorp,  7  Ha.  74.  Eq.  3.52. 

'  Ilume  V.  Pocock,  L.  R.  1  Ch.  App,  "  National  Exchange  Co.  v.  Drew,  23 

385.  Dec  of  Ct.  of  Session,  2d  series,  p.  I. 

*  Fenton    v.   Brown,    14    Ves.    144;  '  Colby  v.  Gadsden,  34  Beav.  416. 

Trower  i\  Newconie,  3  Mer.  704  ;  Scott  *  Jennings  v.  Broun-hton,   5  D.  M.  & 

«/.  Hanson,  1  R.   &  M.    129;    White  i;.  G.  136;  Ste^jhens  y.  VenableS,  31  Beav. 

Cuddon,  8  C\.  &  Fin.  766  ;  Dimmock  v.  124. 

Hallett,  L.  R.  2  Ch.  App.  26.     See  Jen-  "  Irvine  v.  Kirkpatrick,  7  Bell,  Sc. 

nings  V.  Broughton,  5  D.  M.  &  G.  126 ;  App.  Ca.  186. 
Johnson  v.  Smart,  2  Giff.   151;    Uay- 


*  A  fraudulent  combination  and  confederacy,  between  a  lessee  and  a 
third  person,  to  ind:;ce  the  lessor  to  purchase  the  leasehold  Ihrou-i'h  folse 
representations  made  by  such  third  person,  and  an  assertion  of  his  desire 
to  purchase  in  case  he  can  obtain  the  property,  is  not  a  simple  commenda- 
tion.    Adams  v.  Soule,  33  Vt.  538. 

t  A  gross  misrepresentation,  as  to  the  boundaries  of  land,  is  fraudulent, 
Griggs  V.  Woodruff,  14  Ala.  9 ;  Elliott  v.  Boaly,  9  Ala.  773 ;  Fisher  o. 
Probart,  5  Hey.  75 ;  Camp  v.  Camp,  3  Ala.  633. 

To  ascertain  the  quantity  of  land  requires  greater  skill  and  a  larger 
proportion  of  science  than  is  acquired  by  the  majority  of  men,  and  a  mis- 
representation in  that  respect  is  material.     Pringle  «.  Samuel  1  Litt.  43. 

The  estimates  of  quantities,  in  themselves  uncertain  and  unmeasured, 
may  differ  at  different  times  from  various  circumstances,  without  any  sus- 
picion of  willful  misrei^rcocntation.     Stebbins  v.  Eddy,  4  ISIason,  414. 


84  MISREPKESENTATION. 

tions  of  a  vendor  of  property  as  to  its  value,  or  tlie  price  he 
has  been  offered  for  it,  or  in  regard  to  its  qualities  and  charac- 
teristics ;  as,  for  instance,  that  land  is  fertile  and  improvable, 
or  that  soil  is  adapted  for  a  particular  mode  of  culture,  or  is 
well  watered,  or  is  capable  of  producing  crops,  or  supporting 
cattle,  or  that  a  house  is  a  desirable  residence,  &c.,  are  assumed 
to  be  so  commonly  made  by  persons  having  property  for  sale? 
that  a  purchaser  cannot  safely  place  confidence  in  them.  Af- 
firmations of  the  sort  are  always  understood  as  affording  to  a 
pm'chaser  no  ground  for  neglecting  to  examine  for  himself, 
and  ascertain  the  real  condition  of  the  property.  They  are, 
strictly  speaking,  gratis  dicta.  A  man  who  relies  on  such 
affirmations,  made  by  a  person  whose  interest  might  so  readil_y 
prompt  him  to  invest  the  property  with  exaggerated  value, 
does  so  at  his  peril,  and  must  take  the  consequences  of  his  own 
imprudence ;  emjptor  emit  quam  minimo  potest  /  venditor 
vendit  quam  maxhno  potest}  *  Although  such  affirmations 
may  be  erroneous  or  false,  they  will  not,  except  in  extreme 
cases,  be  regarded  as  evidence  of  a  fraudulent  intent.^  A. 
statement  of  value  may,  however,  be  so  plainly  false,  as  to 
make  it  impossible  for  the  party  to  have  believed  what  he 
stated.^t  So,  also,  statements  with  respect  to  the  quality  or 
condition  of  land,  will,  if  erroneous  or  false,  amount  in  ex- 
treme cases,  to  a  misrepresentation  in  law.*     So,  also,  a  state- 

'  1  Roll.  Ab.  101,  pi.  16;    Leakins  v.  ^  lb. ;   Dimmock  v.  Halfett,   L.  R.  2 

Clissell,  1  Sid.HG,  1  Lev.102;  Harvey?;.  Ch.  App.  26. 

young,  Yclv.  20  ;  Trower  t).  Newcome,  'Wall  ;•.   Stubbs,  1  Madd.  80;    In- 

3  Mer.  704;  Scott  i'.  Hanson,  1  1!.  &  M.  gram  ;•   Tliorp,  7  Ha.  74. 

129 ;    Medburj'    v.    Watson,    6   Mete.  *  Dimmock    v.   Hallett,  L.  R.   2  Ch. 

(Amer.)  2.'59  ;    Gordon  v.   Parmeloe,  2  App.  26  ;  Van  Epps  «.  Harrison,  5  HBl 

Allen  (Amer.),  214;  Manning  v.  Albee,  (Amer.),  67. 
11  ib.  522. 


*  Anderson  v.  Hall,  2  Smed.  &  Mar.  679 ;  Evans  v.  Boiling,  5  Ala.  550 ; 
Halls  V.  Thompson  1  Smed.  &  Mar.  443. 

t  Broddus  v.  McCall,  3  Call.  546;  Peyton  v.  Butler,  3  Hey.  141 ;  Pitta 
V.  Cottingbam  9  Port.  675. 


MISREPRESENTATION.  85 

nienfc  in  the  prospectus  of  a  company,  that  the  promoters  of 
the  company  had  taken  "  a  large  portion "  of  the  shares, 
though  vague  in  its  nature,  will  amount,  in  extreme  cases,  to  a 
misrepi'esentation.' 

An  assertion  that  a  third  person  has  offered  a  specified  sum 
for  the  property,  though  false,  is,  like  mere  statements  of 
value,  an  assertion  of  so  vague  and  loose  a  character,  that  a 
purchaser  is  not  justified  in  relying  on  it.^ 

The  difference  between  a  false  averment  in  matter  of  fact, 
and  a  like  falsehood  in  matter  of  judgment,  opinion,  and  esti- 
mate, is  well  illustrated  by  familiar  cases  in  the  books.  If  the 
owner  of  an  estate  affirm  that  it  will  let  or  sell  for  a  given  sum, 
when,  in  fact,  such  sum  cannot  be  obtained  for  it,  it  is,  in  its 
own  nature,  a  matter  of  judgment  and  estimate,  and  so  the  par- 
ties must  have  considered  it.^  *  But  if  an  owner  falsely  affirm 
that  an  estate  is  let  for  a  certain  sum,  when  it  is,  in  fact,  let  for 
a  smaller  sum,  or  that  the  profits  of  a  business  are  more  than, 
in  fact,  they  are,  and  thereby  induces  a  purchaser  to  give  a 
higher  price  for  the  property,  it  is  fraud,  because  the  matter 
lies  within  the  private  knowledge  of  the  owner.^     If,  again, 

'  Henderson  v.  Lacon,  L.  R.  5  Eq.  *  Ekins    v.   Treshani,    1    Lev.    102 

257  Lysney  v.  Shelby,  2  Lord   Raym.  1118 

"Sug.  V.  <fe  P.  3,  1  Roll.  Ab.  101,pl.  Dobell    v.    Stevens.    3   B.    <fe  C.    G23 

16  Hutchinson   v.   Morley,    *1  Scott,   341 

^  Harvey  v.  Young,  Yelv.  20,  1  Roll.  Dimmock  v.  Hallett,  L.  R.  2  Ch.  App, 

Ab,  801,  pi.  16 ;    Leakins  1^.  Clissell,  1  28;     Medbury     v.     Watson,    6    Mete 

Sid.  14ij ;    comp.   Dimmock  v.  Hallett,  (Amer.)  259. 
L.  R.  2  Ch.  App.  28. 


*  If  a  person  sells  a  tract  of  land,  claiming  to  be  the  owner,  and 
knowing  that  he  is  not  so,  he  is  guilty  of  fraud.  But  if  he  professes 
to  sell,  not  the  paramount  title,  but  a  claim  derived  from  a  jjarticular 
source  he  is  not  guilty  of  a  fraud,  merely,  because  he  expresses  an  opinion 
as  to  the  legal  value  or  strength  of  his  claim,  which  the  facts  do  not  justify, 
so  lono-  as  he  makes  no  false  statement  as  to  what  those  facts  are.  Drake 
V.  Latham,  50  Dl.  270. 

A  false  representation  that  land  will  yield  a  certain  amount  of  salt- 
petre, is  fraudulent.     Perkins  v.  Rice,  G  Litt.  218. 


86  MISREPRESENTATION. 

tlie  owner  of  land  represent  that  it  is  well  watered,  the  state- 
ment will  not,  although  erroneous  or  false,  amount  in  law  to  a 
misrepresentation,  except  in  extreme  cases ;  ^  bnt,  if  he  repre- 
sents that  land  is  situated  on  the  banks  of  a  river,  whereas  it  is 
some  miles  off  from  the  river,  there  is  misrepresentation,  for 
the  false  representation  is  in  respect  to  a  precise  and  definite 
fact.*^  So,  also,  is  there  misrepresentation  of  a  fact,  if  the 
representation  he  calculated  to  lead  the  person  to  whom  it  is 
made  to  believe  that  there  is  a  natural  supply  of  water  on  the 
property,  whereas  the  fact  is  that  the  property,  though  well 
supplied  with  water,  derives  its  supply  artificially  from  the 
waterworks  of  a  town,  and  by  payment  of  rates.^* 

The  representation  of  an  actual  state  of  things  as  existing, 
is  equivalent  to  the  misrepresentation  of  a  fact.* 

In  Yernon  v.  Keyes,^  the  true  rule  was  stated  to  be  that 
the  seller  was  liable  to  an  action  of  deceit,  if  he  fraudulently 
misrepresent  the  quality  of  the  thing  sold  in  some  particulars 
which  the  buyer  has  not  equal  means  of  knowledge  with  him- 
Belf ;  or  if  he  do  so  in  such  a  manner  as  to  induce  the  buyer 
to  forbear  making  the  inquiries  which,  for  his  own  security 
and  advantage,  he  w^ould  otherwise  have  made. 

The  rule  that  exaggeration,  as  distinguished  from  misrep- 
resentation, goes  for  nothing,  applies  with  peculiar  force  to  the 
case  of  statements  in  the  prospectuses  of  companies.  The 
promoters  of  adventures  are  so  prone  to  form  sanguine  expec- 
tations as  to  the  prospects  of  the  schemes  which  they  introduce 
to  the  public,  that  some  high  coloring  and  some  exaggeration 

*  Scott  V.  Hanson,   1   R.  <fe  M.  129;  =  Leyland  v.  Ulingworth,   2  D.  F.  A 

Trower  v.  Newcome,  3  llei\  7t>4.  J.  203. 

^  Van    Epps     v.    Hanison,    5    Hill  ^  Piggott  t>.  Stratton,  John.  359 ;  1  D 

(Amer.),  07.  F.  <fe  J.  49. 

*  12  East,  032. 


*  Pitts  V.  Cottingham,  9  Port.  675  ;    Lewis  v.  McLemon,  10  Yerg.  205; 
Mouell  V.  Golden,  1:3  Johns.  395. 


MISREPRESENTATION.  87 

in  the  description  of  the  advantages  which  are  likely  to  be  en- 
joyed by  the  subscribers  to  the  undertaking,  may  generally  be 
expected  in  such  documents.  No  prudent  man  can,  owing  to 
the  well-known  prevalence  of  exaggeration  in  such  documents, 
accept  the  prospects  which  are  held  out  by  the  originators  of 
every  new  scheme,  without  considerable  abatement.  But, 
though  the  representations  in  the  prospectus  of  a  company 
ought  not,  perhaps,  to  be  tried  by  as  strict  a  test  as  is  applied 
in  other  cases,  they  are  required  to  be  fair,  honest,  and  bond 
fide.  There  must  be  no  misstatement  of  any  material  facts  or 
circumstances.-^ 

As,  on  the  one  hand,  mere  assertions  of  value  by  the  ven- 
dor of  property  are  not  fraudulent  in  law,  though  erroneous  or 
false ;  so,  on  the  other  hand,  a  disparagement  of  property  by  a 
purchaser  is  not  a  frand.^  Kor  is  a  buyer  liable  for  misrepre- 
senting a  seller's  chance  of  sale  or  probability  of  his  getting  a 
better  price.  It  is  a  false  representation  in  a  matter  merely 
gratis  dictum  by  the  bidder,  in  respect  of  which  he  is  under 
no  legal  duty  to  the  seller  for  the  correctness  of  his  statement, 
and  upon  which  the  seller  would  be  incautious  to  rely.'  So, 
also,  is  a  representation  by  a  purchaser  to  a  seller,  that  his 
partners  would  not  consent  to  his  giving  more  than  a  certain 
sum,  though  false,  merely  a  gratis  dictum.^  But  though  the 
value  of  property  is  generally  a  matter  of  opinion,  a  vendor 
may  put  upon  a  purchaser  the  responsibility  of  informing  him 
correctly  as  to  the  market  value,  or  any  other  fact  known  to 
him,  affecting  the  value  of  property,  and  if  the  purchaser  an- 
swers untruly,  there  is  fraud.  He  is  not  bound  to  answer  in 
such  cases,  but  if  he  does  he  is  bound  to  speak  the  truth.^ 


'Kisch   V.    Central   Railway   Co.    of  "Tate   V.Williamson,   L.    R.    2   Ch. 

Venezuela,  3  D.  J.  &  S.  122;    Denton       App.  65. 

V.  Macneil,  L.  R.   2  Eq.  ;?52  ;    Central  '  Vernon  v.  Keys,  12  East,  637. 

Railway  Co.  of  Venezuela  v.  Kisch,  L.  *  Ih. 

R.  2  App  Ca.  113.  "Smith     v.     Countryman,     3     Tiff. 

(Amer.)  683,  per  Miller,  J. 


88  MISRErEESENTATION. 

The  representations  of  a  vendor  of  real  estate  to  the 
vendee,  as  to  the  price  which  he  lias  paid  for  it,  are,  in  respect 
of  the  I'eh'ance  to  be  placed  on  them,  to  be  regarded  generally 
in  the  same  light  as  representations  respecting  its  value,  or 
the  ofters  which  have  been  made  for  it.  A  purchaser  is  not 
justified  in  placing  confidence  on  them.'  But  a  false  affirma- 
tion by  a  vendor  as  to  the  actual  cost  of  property,^*  or  as 
to  the  amount  spent  upon  it  by  him  in  improvements,^  may 
amount  to  a  fraudulent  misrepresentation. 

A  vendor  is  not  bound  to  disclose  to  the  vendee  the  true 
ownership  of  the  property  he  is  engaged  in  selling,  but  he  is 
bound  to  abstain  from  making  any  misrepresentations  respect- 
ing the  ownership.* 

As  distinguished  from  the  false  representation  of  a  fact,  the 
false  representation  as  to  a  matter  of  intention,  not  amounting 
to  a  matter  of  fact,  though  it  may  have  influenced  a  transac- 
tion, is  not  a  fraud  at  law,^  nor  does  it  afi'ord  a  ground  for 
relief  in  equity.^  Where  a  man  was  induced  to  grant  a  lease 
of  certain  premises  to  another,  upon  a  representation  that  he 
intended  to  use  the  premises  for  a  stated  purpose,  whereas  he 
intended  to  use  and  did  use  them  for  a  diflPerent  and  illegal 
purpose,  it  was  held  that  the  misrepresentation  did  not  entitle 
the  lessor  to  have  the  lease  avoided.'''  So,  also,  where  a  man 
who  had  given  a  bond  to  another,  upon  which  judgment  had 
been  entered  up,  had  married    upon   the  declaration  of  the 

'  Medbury  V.Watson,  6  Mete.  (Amer.)  Fellowes  v.   Lord  Gwydyr,  1  R.  <fe  M 

259  ;     Ilemmer    v.    Cooper,    8    Allen  83  ;  Nelthorpe  v.  Ilolgate,  1  Coll.  203. 

(Amer.),  334.  ^Vernon    v.   Keys,    12  Enst,    637; 

*  Sandford,     v.    Handy,    23    Wend.  Hemmingway  v.  Hamilton,  4  M.  &  W. 
(Amer.)  269  ;  Van  Epps  v.  Harrison,  5  122  ;  Feret  v.  Hill,  15  C.  B.  22.5. 
Hill(Amer.),  6V.  "  Jorden    v.   Money,    5   H.    L.  185; 

'  Ross  V.  Estates  Investment  Co.,  L.  Bold  v.  Hutchinson,  5  D.  M.  &  G.  558; 

R.  3  Eq.  136.  Kay  v.  Crook,  3  Sm.  &  G.  407. 

*  Hill  '.'.  Gray,  1  Stark,  434  ;  Maturin  ''Feret  v.  Hill,  15  C.  B.  207. 
V.  Tredennick,'2  N.  K.  514;  but  comp. 


*  Bandford  v.  Handy,  23  Wend.  2C0  ;  Pendergast  v.  Reed,  29  Md.  398. 


MISEEPRESEXTATION.  89 

person  who  lield  the  bond  and  warrant  of  attorney,  that  she 
had  abandoned  the  claim,  and  would  never  trouble  him  about 
it,  the  court  would  not  restrain  her  from  enforcing  at  law  the 
judgment  on  the  warrant  of  attorney.  Lord  St.  Leonards, 
however,  dissented  from  the  opinion  of  the  majority  of  the 
court,  holding  it  to  be  immaterial  in  equity,  whether  the  mis- 
representation be  of  a  fact  or  an  intention.-'  But  if  the  repre- 
sentation, though  in  form  a  representation  as  to  a  matter  of 
intention,  amounts  in  effect  to  a  representation  as  to  a  matter 
of  fact,  relief  may  be  had  in  equity.  Where,  accordingly,  a 
lessor,  pending  an  agreement  for  a  building  lease,  represented 
to  the  intended  lessee,  that  he  could  not  obstruct  the  sea  view 
from  the  houses  to  be  built  by  the  lessee,  because  he  himself  was 
a  lessee  under  a  lease  for  999  years,  containing  covenants  which 
restricted  him  from  so  doing  ;  but  after  the  building  lease  had 
been  taken,  and  the  houses  built  upon  the  faith  of  the  repre- 
sentation the  lessor  surrendered  his  999  years'  lease,  and  took 
a  new  lease  omitting  the  restrictive  years,  the  court,  consider- 
ing the  representation  to  have  been  in  effect  a  representation 
as  to  a  matter  of  fact,  restrained  the  lessor  by  injunction  from 
building  so  as  to  obstruct  the  sea  view.^ 

A  representation  which  amounts  to  a  mere  expression,  of 
intention  must  be  distinguished  from  a  representation  which 
amounts  to  an  engagement.  If  a  representation  amounts  to  an 
engagement,  the  party  making  it  is  bound  in  equity  to  make  it 
good.^  Where,  for  instance,  a  man  previously  to  the-  marriage 
of  his  daughter  said  he  intended  to  leave  her  10,000Z.  which 
was  to  be  settled  in  a  particular  way,  and  that  the  person  about 
to  marry  her  was  for  this  reason  to  settle  5,0001.  on  her,  and 


'  Jorden  v.  Money,  5  H.  L.  185.    See  *  Ilammersley  v.  De  Biel,  12  CI.  & 

Cross  ?i.  Sprii^ge,  6  Ha.  553  ;    Maunsell  Fin.  45;  Maunsell  ».  Hedj^es,  4  11.   1,. 

V.  Hedges,  4  H.  L.  1039;    comp.   Yeo-  105H ;  Loxley  )•.  Heath,   1   D.  F.   <fe  J. 

mans  v.  Williams,  L.  R.  1  Eq.  185.  492 ;  LotfusV  Maw,  3  Gitf.  592. 

"  Piggott  V.  Slratton,  John.  369,  1  D. 
F.  &  J.  49. 


90  MISREPEESElfTATION. 

the  party  did  make  the  settlement  and  married  the  lady,  the 
engagement  was  held  binding,  for  the  circumstances  amounted 
to  a  contract.^  If,  on  the  other  hand,  a  man  previously  to  the 
marriage  of  a  relation  tells  him  that  he  has  made  his  will  and 
left  him  his  property,  and  that  he  is  confident  he  never  would 
alter  his  will  to  his  disadvantage,  or  tells  him  before  his  mar- 
riage  to  his  daughter  that  he  would  leave  her  so  much  money, 
this  is  a  mere  expression  of  intention,  on  which  the  person  to 
whom  it  is  addressed  is  not  justified  in  relying.^  A  representa- 
tion which  amounts  to  an  eno-ao^ement  is  enforced  not  as  beino; 
a  representation  of  an  intention,  but  as  amounting  to  a  con- 
tract.^ There  is  no  middle  term,  no  terthiin  quid,  between  a 
representation  so  made  to  be  effective  for  such  a  purpose  and 
being  effective  for  it  and  a  contract.* 

A  misrepresentation  of  a  matter  of  law  does  not  constitute 
fraud  at  law,  because  the  law  is  presumed  to  be  equally  within 
the  knowledge  of  all  the  parties.  Thus,  the  misrepresentation 
of  the  legal  effects  of  a  written  agreement  which  a  party  signs 
with  a  full  knowledge  of  its  contents,  is  not  a  sufficient  ground 
at  law  for  avoiding  the  agreement.^*  But  if  a  man  dealing 
with  another  misleads  him,  and  takes  advantage  of  his  ignor- 
ance respecting  his  legal  position  and  rights,  though  there  may 

'Hammerslcy  v.  De  Bid,   12  CI.  &  '  Bold  v.  Ilutcliinsm,  5  D.  M.  AG. 

Fin.  45.     See  Barkworth  zj.   Young,   4  558;  Maunsell  )■.  Hedges,  4  H.  L.  1056; 

Drew.  1;  I'role   v.  Soadv,  2  Giff.'  20;  Loxley  v.  Heath,  1  D.  F.  &  J.  492. 

Loffus  V.  Maw,  3  Giff.  592  ;   Alt  v.  Alt,  *  4  H.  L.  1055,  per  Lnrd  Cranwortb. 

4  Giff.  84.  *  Lewis  r.  Jones,  4  B.  <fc  C.  506.     See 

»  Bold  V.  ITuteliinson,  5  D.   M.  <fe  G.  Blacklnirn's   Case,  8   D.  M.  &  G.   177: 

5.^8;  Maunsel!  c  lled-:es,  4  II.  L.  1030  ;  Raslidall  v.  Ford,  L.  R.  2  Eq.  750. 
Loxk-y  V.   Heath,   1  1).   F.   &  J.  492 ; 
Laver  v.  Gilder,  32  Beav.  4. 


*  Russell  V.  Branham,  8  Blackf.  277 ;  Starr  v.  Bennett,  5  Hill,  303 ; 
Martin  r.  Wbarton,  38  Ala.  G37 ;  Fish  r.  Clelaud,  33  111.  233 ;  Jasper  v. 
Hamilton,  3  Dana,  280  ;  Goode  v.  Hawkins,  2  Dev.  Ch.  393  ;  Clem  v.  New 
&  Dan.  R.  R.  Co.,  9  Lad.  488. 


MISPtEPRESEXTATION.  91 

be  no  legal  fraud,  the  case  may  come  within  the  jurisdiction 
exercised  by  courts  of  equity  to  prevent  imposition.^* 

To  constitute  a  fraudulent  representation,  the  representa- 
tion need  not  be  made  in  terms  expressly  stating  the  existence 
of  some  fact  which  does  not  exist.  If  a  statement  be  made  by 
a  man  in  such  terms  as  would  naturally  lead  the  person  to 
whom  it  was  made  to  suppose  the  existence  of  a  certain  state 
of  facts,  and  if  such  statement  be  so  made  designedly  and 
fraudulently,  it  is  as  much  a  fraudulent  misrepresentation  as  if 
the  statement  of  an  untrue  fact  were  made  in  express  terms.^ 

A  representation  may  be  false  by  reason  not  only  of  posi- 
tive misstatements  contained  in  it,  but  by  reason  of  intentional 
suppression  whereby  the  information  it  gives  assumes  a  false 
-^olor,  giving  a  false  impression,  and  leading  necessarily,  or 
almost  necessarily,  to  erroneous  conclusion.^  Fallit  et  qui  ob- 
scure loquitur  et  qui  dissimulat  insidlose  vel  obscure}  Dolum 
malum  a  se  abesse praestare  venditor  debet :  qui  non  tantum 
in  eo  est  qui  fallendi  causa  obscure  loquitur  ^  sed  etiam  qui 
insidiose,  obscure  dissimulat.^  It  is  the  duty  of  a  vendor  of 
property  to  make  himself  acquainted  with  all  the  peculiarities 
and  incidents  of  the  property  which  he  is  going  to  sell,  and 
when  he  describes  the  property  for  the  information  of  a  pur- 
chaser, it  is  his  duty  to  describe  everything  which  it  is  material 
for  him  to  know,  in  order  to  judge  of  the  nature  and  value  of 
the  property.     It  is  not  for  him  just  to  tell  what  is  not  actually 

'  Infra Mistake.  Flint   v.    Woodin,  9    Ha.    621 ;    comp. 

»  Lee  V.  Jones,  17  C.  B.  N.  S  510,  jier       Bold  v.  Hutchinson.  5  D.  M.  <fe  G.  558. 
Crompton,  J. ;  L<i\viidcs  v.  Lane,  2  Cox,  ^  Cullen's  Trustee  v.  Johnston,  3  Dec. 

363;   Wnlker  v.    Symonds,  3  Sw.   73;       of  Court  of  Session,  3d  series,  p.  936. 
Drvsdale  v.  Mace,  5  D.  M.  k  G.  103;  *  Dig.  Lib.  18,  tit.  1,  leg.  43. 

^  lb. 


*  Town^end  v.  Coalcs,  31  Ala.  428  ;  Drew  r.  Clarke,  Cooke,  374  ;  Broad- 
well  B.  Broadwell,  1  Gilman,  oOo. 

A  mi.-;representation  as  to  the  li-gal  eff  ct  of  an  instrument  may  be 
fraudulent.     Colter  «.  ^Morgan,  12  B,  Mon.  278. 


92  MISKEPRESEXTATION. 

untrue,  leaving  out  a  great  deal  that  is  true,  and  leaving  it  to 
the  purchaser  to  inquire  whether  there  is  an  j  error  or  omission 
in  the  description  or  not.-' 

There  is  a  misrepresentation,  if  a  statement  be  so  made 
that  the  acuteness  and  industry  of  the  person  to  whom  it  is 
made  is  set  to  sleep,  and  he  is  induced  to  believe  the  contrary 
of  what  is  the  real  state  of  the  case.^  If,  for  instance,  there  is 
a  misrepresentation  as  to  the  terms  of  a  particular  covenant, 
which  turned  out  to  be  of  a  much  more  stringent  description, 
there  is  fraud.^  So  also  where  conditions  of  sale  are  so  ob- 
scurely worded  that  when  taken  in  connection  with  the  par- 
ticulars of  sale  they  are  likely  to  mislead  an  ordinary  purchaser 
as  to  the  nature  of  the  property,  there  is  fraud,*  A  representa- 
tion thougli  true  to  the  letter,  may  be  in  substance  a  misrepre- 
sentation.® There  is  a  misrepresentation,  if  a  statement  is  cal- 
culated to  mislead  or  throw  the  person  to  whom  it  is  made  off 
his  guard,  though  it  may  be  literally  true."  An  assertion,  on 
the  other  hand,  by  a  man  of  what  he  thinks  entitled  in  point 
of  law  to  assert  is  not  a  misrepresentation,  though  it  may  not 
be  strictly  correct.' 

A  misrepresentation  is  usually  by  words ;  but  it  may  be  as 
well  by  acts  or  deeds,  as  by  words  ;  by  artifices  to  mislead  as 
well  as  by  actual  assertions.  Even  in  chaffering  about  goods 
there  may  be  such  misrepresentation  as  to  avoid  a  contract.  A 
man,  who  by  act  or  deed  falsely  and  fraudulently  impresses  the 


■  Brandling  I'.  Plummer,  2  Drew.  430.  Investment  Co.,  L.  R.  3  Eq.  135.     See 

'Pope  V.  barland,  4  Y.  &   C.   401;  Ilobbs  v.  Norton,  1  Verm.  135;  Crofts 

Spunner  v.  Walsh,  10  Ir.  Eq.  380.  v.  Middleton,  2  K.  &  J.  2i0. 

'  Flight  V.  Bootli,  1  Bing.  N.  C.  377;  °  Edwards  v.  Wickwar,  L.  R.  1  Eq. 

Van  V.  Corpe,  3  M.  &  C.  209;  Flight  v.  C8 ;  Dimraock  v.   Hallctt,  L.  R.  2  Cli. 

Barton,  ib.  282.  ^PP-   28 ;   Ross   v.   Estates  Investment 

*  Taylor  v.  Martiudale,  1  Y.  <fe  C.  C.  Co.,  L.  R.  3  Eq.  135;  Colby  v.  Gadsden, 

C.  658.  15  W.  R.  1185;  Chester  v.  Spargo,  16 

»  Lowndes  v.  Lane,  2  C<)x,  363 ;  Flint  W.  R.  576. 

V.  Woodin,  9  Ila.  618;  Stanton  r.  Tat^  '  Legge  v.  Croker,  1  Ba.  &  Be.  506; 

tersall,  1  Sm.  &  G.  529;  M'Culloeh  i'.  New   IJrun.swick,    <fec.    Railwnv  Co.    v. 

Gregory,  1  K.  &  J.  286;  Clarke  c.  Dick  Conybeare,  9  H.  L.  711.     See'Wilde  v. 

soD°6  C.  B.  N  S.  453  ;  Ross  v.  Estates  Gibson.  1  H.  L.  626. 


MISREPRESENTATIOIJ.  93 

mind  of  another  with  a  certain  belief  whereby  he  is  misled  to 
his  injury,  is  as  much  guilty  of  a  misrepresentation  as  if  he  had 
deliberately  asserted  a  falsehood.*  -  It  is  a  fraud  to  impress 
npon  a  vendible  article  the  trade-mark  of  another  in  order  to 
give  it  greater  currency  in  the  market.^ 

It  is  not  enough  that  there  has  been  a  misrepresentation, 
and  that  the  misrepresentation  has  conduced  in  some  way  to 
the  transaction  in  question.  It  is  necessary  that  the  misrepre- 
sentation should  have  been  made  in  relation  to  the  transaction 
in  question,  and  with  the  direct  intent  to  induce  the  party  to 
whom  it  is  immediately  made,  or  a  third  party,  to  act  in  the 
M'ay  tliat  occasions  the  injury.^  A  representation  which  has 
been  made  some  time  before  the  date  of  the  transaction  in 
question  is  not  sufficient,  unless  it  can  be  clearly  shown  to  have 
been  immediately  connected  with  it."*  A  representation  to  be 
of  any  avail  whatever,  must,  unless  under  special  circumstances, 
have  been  made  at  the  time  of  the  treaty ,5  and  should  not 
have  any  relation  to  any  collateral  matter  or  other  relation  or 
dealing  between  the  parties.® 

'  Sibbald  v.  Hill,  2  Dow.  266  ;  Lovell  114;  Barry  v.   Crosskey,  2  J.  <fe  H.  1 ; 

v.  Hicks,  2  Y.   &  C.    55;  Crawshay  v.  Way   v.   IJearne,    32    L.    J.   C.   P.    34; 

Thornton,  4  M.   <fe  G.  387;  Barnes  v.  Queen  v.  Sadlers'  Co.,  10  H.  L.  404. 
Pcnnell,  2  H.  L.  497.  ■*  Biirnes  v.  I'ennell,  2  H.  L.  497,  530. 

*  Craw>hay  v.   Thornton,  4  M.  &  G.  See   KicoU's  Case,    3   D.    A    J.    439; 

387.     See  Kerr  on  Injunctions,  p.  474.  Wlieilton  ?;.   Hardist}-,  8  E.  <fe  B.  232  ; 

'  East  India  Co.  v.  Henchman,  1  Ves.  Jlaunsell  v.  Hedges,  4  H.  L.  1060,  per 

J.  287;  Dobell  v.   Stevens,  3   B.   &  C.  Lord  St.  Leonards;  Barrett's  Case,  3  D. 

623;  Harris  v.  Kemble,  5  Bligh,  N.  S.  J.  &  S.  30;  Western  Bank  of  Scotland 

730;   Attwood  v.    Small,  6  CI.   &   Fin.  v.  Addie,  L.  R.  1  So.  App.  Ca.  155. 
232,  445;  Irvine  w.  Kirkpatrick,  7  Bell's  Mlarris  v    Kemble,  1   Sim.  122,  per 

So.  Ap.  Ca.  186;  Burnes  v.   I'eniiell,  2  Sir  J.  Leach,  M.  II.     See   W  hielton  v. 

II.  L.  497,  529;  Smith  v.  Kay,  7  H.  L.  Hardisty,  El.  Bl.  &  El.  232;   Hotsomt;. 

750,  775;    National   Exchange  Co.   v.  Browne,  9  C.  B.  N,   S.  445;  Smith?;. 

Drew,  2  Macq.  1 20 ;  NicoU's  Case,  3  D.  Kay,  7  H.  L.  750. 

&  J.   387,  440;   Jameson  v.   Stein,  21  "Harris  v.  Kemble,    1   Sim.    122,    5 

Beav.  5;  Denne  v.  Light,  8  D.  M.  &  G.  Bligh's  N  S.  730;  National  Exchange 

Co.  V.  Drew,  2  Macq.  103. 


*  Martin  v.  Pennoclc,  2  Barr.  3TG  ;  Graves  v.  White,  1  Frccra.  57 ; 
Chisholm  v.  Gadsden,  1  Strolih.  220;  Smith  ».  Mitchell,  G  Geo.  458;  Reese 
V.  Wvman,  9  Geo.  430 ;  Cochran  v.  Cummings,  4  Dull.  250 ;  Willink  v. 
Vaoderwear,  1  Barb.  599. 


94  M1SREPEESENTATI02T. 

Misrepresentation,  however,  goes  for  notliing  either  at  law 
or  in  equity  unless  a  man  has  been  misled  thereby  to  his  preju- 
dice.^^ Fraud  without  damage  is  not  sufficient  to  support  an 
action  or  to  be  a  ground  for  relief  in  equity.^  But  it  is  enough 
if  the  representation  operates  to  the  prejudice  of  a  man  to  a 
very  small  extent.^  Fraud  gives  a  cause  of  action  if  it  leads 
to  any  sort  of  damage.^  But  in  order  that  a  false  representa- 
tion should  give  a  cause  of  action  the  damage  must  be  the  im- 
mediate and  not  the  remote  cause  of  the  representation.'' 

Misrepresentation  may  consist  as  well  in  the  concealment 
of  what  is  true  as  in  the  assertion  of  what  is  false.^  If  a  man 
conceals  a  fact  that  is  material  to  the  transaction,  knowing  that 
the  other  party  acts  on  the  presumption  that  no  such  fact  exists, 
it  is  as  much  a  fraud  as  if  the  existence  of  such  fact  were 
expressly  denied  or  the  reverse  of  it  expressly  stated.®  f  Con- 
cealment to  be  of  any  avail  whatever,  either  at  law  or  in  equity, 
nmst  be  dolus  clans  locum  contractui.     There  must  be  the  sup- 

1  Polhill  V.  Walter,   3  B.  &  Ad.  114  ;  *  Barry  v.  Crosstey,  2  J.  &  H.  1. 

Felliiwes  v.  Lord  Gvvydyr,  1  Sim.  63,  1  *  Tapp  v.  Lee,  3  B.   cfe  P.  3Y1 ;  Cen- 

R.  <fe  M.    83.     t^ee  Flints.  Woodin,  9  tral  Railway  Co.  of  Vmezuela  d.  Kisch, 

Ha.  618;  Smith  v.  Kay,  7  H.  L.  750.  L.   R.  2  App.   Ca.   114;  Oakes  v.  Tur- 

'  Cadman  v.  Homeric  18  Ves.  10.  See  qunnd,  ib.  326. 

Ross  V.  Estates  Investment  Co.,  L.  R.  3  ^  Conyers  v.  Ennis,  2  Mass.  (Amer.) 

Eq.  136.  236. 

^  Smith  V.  Kay,  7  H.  L.  750,  775. 


*  Farrar  v.  Alston,  1  Dev.  69  ;  Icle  v.  Gray,  11  Vt.  615 ;  Young  v.  Bum- 
pass,  1  Freem.  Ch.  241 ;  Clark  v.  White,  12  Pet.  178;  Gairow  r.  Davis,  15 
How.  272;  Abbey  v.  Dewey,  25  Penn.  413;  Morgan  v.  Bliss,  2  Mass.  112; 
Fuller  r.  Hogden,  2h  Me.  243. 

The  true  measure  of  damages  is  the  difference  between  the  actual  value 
of  the  property  and  the  value  which  it  would  have  possessed  if  it  had 
been  as  represented.     Rawley  t.  "Woodruff,  2  Lans.  419. 

If  a  man  is  procured  to  do  an  act  even  through  fraud,  yet  the  act  will 
be  valid  if  it  was  such  as  the  law  would  have  compelled  him  to  perform. 
Young  1).  Eumpiss,  1  Freem.  Ch.  241. 

t  Riiwdon  r.  Blatchford,  1  Sandf.  Ch.  344 ;  Trigg  v.  Read,  5  Humph. 
529;  Scott  i;.  Baraer,  2  Lans.  567;  Smith  v.  Click,  4  Humph.  186;  Pren- 
tiss V.  Rus3,  16  Me.  30. 


MISREPRESENTATION.  95 

pression  of  a  fact,  the  knowledge  of  wliicli  it  is  reasonable  to 
infer  would  have  made  the  other  party  to  the  transaction  ab- 
stain from  it  altogether.  Concealment  of  a  fact  is  not  material 
if  the  statement  of  that  fact  would  not  have  induced  a  man 
(otherwise  desirous  of  entering  into  the  transaction)  to  abstain 
from  it^  A  concealment  to  be  material  must  be  the  conceal- 
ment of  something  that  the  party  concealing  was  under  some 
legal  or  equitable  obligation  to  disclose.^  * 

If  the  fact  is  one  which  ought  to  have  been  disclosed,  the 
circumstance  that  it  may  not  have  been  disclosed  through  mis- 
take, ignorance,  or  forgetfulness,  cannot  be  taken  into  consider- 
ation. It  is  immaterial  that  the  concealment  may  not  have 
been  wilful  or  intentional,  or  with  a  view  to  private  ad- 
vantage.^ f     It  is  also  essential  that  the  concealment  should  be 

>Pulsford  V.  Richards,  17  Beav.  98.  ib.  609;  Roddy  v.  Williams,  3  J.  <fe  L. 

See  Diivies  v.  Cooper,  5  M.  &  C.  270;  21;  Abbott  v.   Sworder,  4  Beg.   &  s! 

Bainbngc:e  v.  Moss,  3  Jur.  N.  S.  58 ;  448;  Pulsford  ti.  Richards,  17  Beav.  87; 

Vane  ".  "Cobbold,   1   Exch.   798 ;  New  Maclure  v.   Kiplej',   2  Mac.  &  G.  274  • 

Enins^'ick,  &c.  liailway  Co.  v.  Mugger-  Blike  v.   Mowatl,  21  Beav.  603  ;  Beck 

idge,  1  Dr.  &  Sim.   363;  Kisch  y.  Cen-  v.  Kantorowicz,  3  K.  <fe  J.  247;  Vane  i'. 

tral  Venezuela  Railway  Co.,  3  D.  J.  <fe  Cobbold,  1    Exch.    798;    Haywood    r 

S.  122.  Cope,  25  Beav.  140;  Brumfit?;.  Morton^ 

'Irvine   v.   Kirkpatrick,  7  Bell,  Sc.  3  Jur.  N.  S.  1198  ;  Evans  «;.  Canin"-ton' 

Ap.  186;  Horsf'all  y.  Thomas,  1  H.  <feC.  1  J.  &  H.  598,  2  D.  F.  &  J.  481 ;  IsTew 

100,  pn'  Bramwell,    B. ;    Archbold   v.  Brunswick,  <fec.  Railway  Co. «;.  Mu"-"-er- 

Lord  ilowth,  L.  R.  Ir.  2  C.  L.  629.  See  idge,  1    Dr.  &  Sm.   363;   Greenfield  v 

Dalbiac  v.  Dalbiac,  16  Ves.  124;  Dalby  Edwards,  2  D.  J.  &  S.   582,  598  ;  Cen- 

V.  I'ldlen,  1  K.  &  M.   296;  Adamson  v.  tral  Venezuela  Railway  Co,  v.  Kisch,  L 

Evitt,  2  R.  <feM.  72;  Harris  t;.  Kemble,  R.  2  App.  Ca.  112;  Re  Madrid  Hank 

1   Sim.    Ill,   5   Bl-gh,  730;  Groves  v.  L.  R.  2  Eq.  216;  Hallows  v.  Fernie,  L. 

Perkins,  6  Sim.  576  ;  Clarke  v.  '1  ipping,  R.  3  Eq.  536  ;  Kent  v.  Freehold  Land 

9  Beav.   284;  Stikeman  v.   Dawscm,  1  and  Brickmaking  Co.,  L.  R.  4  Eq.  598. 
Deg.  &  S.  90 ;  yhackleton  v.  Sutcliffe,  '  Pusey  v.   Desbouverie,  3  P.  Wms. 


*  PeaiTett  v.  Shawbhut,  5  Miss.  323  ;  Jouzin  v.  Toulmin,  9  Ala.  663 ; 
Steele  ».  Kinkle,  3  Ala.  352. 

Concealment  which  amounts  to  fraud  in  the  sense  of  a  court  of  equity, 
is  the  non-clisclosurc  of  those  facts  and  circum?<tances  -which  one  party 
is  under  some  legal  or  equitable  obligation  to  communicate,  and  wliicli 
the  other  party  has  a  right  not  merely  inforo  conscientice,  hnt  jurin  el  dejure, 
to  know.     Young  v.  Bumpass,  1  Froem.  Ch.  241. 

t  Farnam  v.  Brooks,  9  Pick.   312  ;    Davidson  v.  Moss,  4  How.  (Miss.) 
673;  Smolson  &  Co.  v.  Franklin,  6  Munf.  210. 


96  MISREPRESENTATION. 

in  reference  to  the  particular  transaction,^  and  should  inure  to 
the  date  of  it.  If  a  party  to  a  transaction  conceals,  however 
fraudulently,  a  material  fact  from  another  with  whom  he  is 
treating,  but  that  other,  notwithstanding  the  concealment,  gets 
at  the  fact  concealed  before  he  enters  into  the  transaction,  the 
concealment  goes  for  nothing.  It  is  of  no  avail,  if  the  party 
has  become  in  any  way  acquainted  with  the  truth.^*  Scientia 
utrlnque  ])ar  ^ares  contrahentes  facit.  The  law  will  not 
interpose,  where  both  parties  to  the  transaction  are  equally 
well  informed  or  are  in  equal  ignorance  as  to  the  actual  con- 
dition or  value  of  the  subject-matter  of  the  transaction.^  f 

The  principles  of  morals  requii-e  more  scrupulous  good 
faith  in  the  dealings  of  men  with  each  other  than  is  exacted 
either  at  law  or  in  equity.  The  writers  of  the  moral  law  hold 
it  to  be  the  duty  of  the  seller  to  disclose  the  defects  which  are 
witliin  his  knowledge.*  But  the  common  law  is  not  so  strict. 
The  law  aims  at  practical  good  and  general  convenience  rather 
than  at  theoretical  perfection.  It  does  not  profess  to  vindicate 
every  deflection  from  propriety,  but  requires  men  in  their 
dealings  with  each  other  to  exercise  proper  vigilance  and 
apply  their  attention  to  those  particulars  which  may  be  sup- 
posed to  be  within  the  reach  of  their  observation  and  judg- 
ment, and  not  to  close  their  eyes  to  the  means  of  information 

SI.");    Bowles  v.   Stuart.  1  Scli.  <fe  Lcf.  'Irvine  v.   Kirkpatriek,  Y  Bell,  Sc. 

249  ;    Brvdi^e?  v.  Branfil,  12  Sim.  384  ;  Ap.  186,  237. 

Willis  j-.'Willis,   17  Siin.  218;    Kailtoa  ^  Su<v.  V.  <fe  P.  1  ;  Knio-ht  r.  Marjori- 

V.  iliitthews,  10  rl  &  Fin.  934.  banks,"ll  Beav.  348,  2  H.  &  Tw.  316. 

'  Green  v.  Gosden,  3  M.  &  G.  446.  "  Grot.  b.  2,  c.  12,  s.  9. 


*  Clark  ».  White,  12  Pet.  178;    Phettiplace  v.  Sayles,  4  Mason,  313; 
Pratt  V.  Philbrook,  33  Me.  17. 

t  Hcbbs  V.  Parker,  31  Me.  143;  Doolcy  v.  Jinning,  6  Mo.  61;  Perkins  v. 
McGavock,  Cooke,  415. 

There  is  no  frainlulent  concealment  where  a  party  entertains  suspicions 
merely,  but  does  not  possess  actual  knowledge.  Crawford  v.  Eertholf, 
Saxton,  458. 


MISREPRESENTATION.  97 

wliicli  are  accessible  to  them  :  vigilantihus,  non  dormientihus^ 
jura  subveniunt.  If  parties  are  at  arms'  length,  either  of 
them  may  remain  silent  and  avail  himself  of  his  superior 
knowledge  as  to  facts  and  circumstances  equally  open  to  the 
observation  of  both,  or  equally  within  the  reach  of  their 
ordinary  diligence,  and  is  under  no  obligation  either  at  law  or 
in  equity  to  draw  the  attention  of  the  other  to  circumstances 
affecting  the  value  of  the  property  in  question,  although  he 
may  know  him  to  be  ignorant  of  them.  If,  for  example,  a 
man  treats  for  the  purchase  of  an  estate,  knowing  that  there 
is  a  mine  under  tlie  land,  and  the  other  party  makes  no 
inquiry,  the  former  is  not  bound  to  inform  him  of  the  fact.*  * 
So  also  a  first  mortgagee  with  power  of  sale,  wlio  has  made 
an  advantageous  contract  for  the  sale  of  the  mortgaged  prem- 
ises, may  buy  up  the  interest  of  a  second  mortgagee  who  sup- 
posed the  property  was  insufficient  to  pay  off  both  mortgages, 
without  informing  him  of  the  contract.^ 

»  Fox  V.   Maoreth,  2  Bro.  C.  C.  420  ;  v.  Morgan,  3  D.  F.  &  J.  723  ;   Archbold 

Tnrnor  v.  Ilarvev,  Jac.  169,  178;  Stike-  v.  Lord  Ilowth,  Ir.  L.  R.  2  C.  L.  608; 

man  v.  Dawson.  1  Deo-.  <fe  S.  90;    Laid-  Su^.  V.  &  P.  14th  ed.  2,  328,  335. 

law  V.  Or2;an,  2  Wliwit.  ( Amer.)  178  ;  *  Dolman  v.  Nokes,  22  Beav.  402. 
Wilde  V.  Gibson,  1  H.  L.  605  ;  Walters 


*  Smith  ■©.  Beatty,  2  Ired  Eq.  456  .  Livingston  v.  Peru  Iron  Co.  3 
Paige,  3;  0  ;  Perkins  x.  McGavock,  Cooke,  415  ;  Harris  v.  Tyson,  24  Penn. 
347 ;  Butler's  Appeal,  26  Penn.  63. 

A  purchaser  is  not  bound  to  communicate  information  concerning  ex- 
trinsic circumstances  which  might  influence  the  price  of  a  commodity 
where  the  means  of  intelligence  are  equally  accessible  to  both  parties. 
But,  at  the  same  time,  each  party  must  take  care  not  to  say  or  do  anything 
tending  to  impose  upon  the  other.  Laidlaw  v.  Organ,  2  Wbeat.  178; 
Matthews  v.  Bliss,  22  Pick.  48;  Kintzing  v.  McElrath,  5  Barr,  4G7;  ^Icrri- 
weather  v.  Ilerran,  8  B.  Mon.  162  ;  Bowman  v.  Bates,  2  Bibb,  47  ;  contra, 
Frazier  r.  Gcrvai>,  Walker,  72. 

The  tenants  in  common  of  a  ve>-sel,  who  are  not  engaged  jointly  in  the 
employment  of  purchasing  or  building  sliij)s  for  sale,  do  not  stand  in  such 
a  relation  of  mutual  trust  and  confidence  to  each  other  in  respect  of  the 
Bale  of  such  vessel,  that  each  is  bound  to  communicate  all  the  information 
of  facts  within  his  knowledge,  which  may  affect  the  price.  Matthews  v. 
Bliss,  22  Pick.  48. 


98  MISREPRESENTATION. 

A  very  little,  however,  is  sufficient  to  aiFect  the  application 
of  the  principle.  If  a  single  word  be  dropped  by  a  purchaser 
which  tends  to  mislead  the  vendor,  the  principle  will  not  be 
allowed  to  operate.^  "  A  single  word,"  said  Lord  Campbell, 
in  "Walters  v.  Morgan,^  "  or  even  a  nod,  or  a  wink,  or  a  shake 
of  the  head,  or  a  smile  from  the  purchaser,  intended  to  induce 
the  vendor  to  believe  the  existence  of  a  non-existing  fact  which 
might  influence  the  price  of  the  subject  to  be  sold,  is  a  fraud 
at  law.  So  a  fortiori  would  a  contrivance  on  the  part  of  the 
purchaser  better  informed  than  the  vendor  of  the  real  value  of 
the  subject  to  be  sold,  to  hurry  the  vendor  into  an  agreement 
without  giving  him  the  opportunity  of  being  fully  informed  of 
its  real  value,  or  time  to  deliberate  and  take  advice  respecting 
the  conditions  of  the  bargain."  If  a  purchaser  conceal  the  fact 
of  the  death  or  dangerous  illness  of  a  person  of  which  the 
seller  is  ignorant,  and  by  which  the  value  of  the  property  is 
materially  increased,  there  is  fraud.^ 

A  vendor  may  not,  on  the  other  hand,  use  any  art  or  prac- 
tise any  artifice  to  conceal  defects,  or  make  any  representation 
for  the  purpose  of  throwing  the  buyer  off  his  guard.  If  he 
says  or  does  anything  whatever  with  an  intention  to  divert  the 
eye  or  obscure  the  observation  of  the  buyer  even  in  relation  to 
open  defects,  there  is  fraud.**  As,  for  example,  where  a  man 
havino-  a  loir  of  mahosranv  to  sell,  turned  it  over  so  as  to  con- 
ceal  a  hole  in  the  underneath  side.®     So  also  where  a  man  sold 


*  Turner  v.  Harvey,  Jac.    169,  1T8;  Keene,  2  Moo.  <fe  Rob.  349.     See  Pop- 
Dolman  i\  Nokes,   22  lieav.  4i)2.     See  Lam  v.  Brooke,  5  Ru-s.  9. 
Davies  .•.  Co>i)  r,  5  M.  &.  C.  270;   Blake  '  Hill  v.  Gray,  1  >tark.  434  ;  Pillmore 
V.  Mowatt,   21   Beav.    603;  I'aunock  v.  v.  Hood,  5  Bing.   N.   C.    97;  Dob'll  v. 
Jauncey,  27  L.  J.  Ch.  57.  Stevens,  3  B.   <fe  G.  623;  Edwards  v. 

'  3  D.  F.  &  J.  724.  Wickwar,  L  R.  1  Eq.  68. 

»  Turner  v.  Harvey,  Jac.  169 ;  Ellard  *  Udell  v.  Atherton,  7  H.  A  N.  172. 
V.  Llaudaff,  1  Ba.   &  Be.  241;  Jones  v. 


*  Hough  r.  Richardson,  3  Story,  690 ;  Doggett  v.  Emerson,  3  Story,  732 ; 
Daniel  v.  Mitchell,  1  Story,  173. 


MISREPRESEI5TATI0N.  99 

a  vessel "  with  all  faults,"  and,  before  tlie  sale,  took  lier  from  the 
ways  on  which  she  lay  and  kept  her  afloat  in  a  dock  in  order 
to  prevent  an  examination  of  her  bottom,  which  he  knew  to  be 
unsound,  the  purchaser  was  held  entitled  to  avoid  the  sale  on 
account  of  fraud .^ 

So  also  if  a  vendor  were  to  describe  the  property  as  let 
upon  lease  under  certain  specified  covenants,  beneficial  to  the 
reversion,  which  however  he  knew  could  not  be  enforced,  this 
would  probably  be  considered  delusive,^  So  also  if  a  vendor 
knowing  of  an  incumbrance  on  an  estate  sells  without  dis- 
closing the  fact,  and  with  knowledge  that  the  purchaser  is  a 
stranger  to  it,  and  under  representations  inducing  him  to  buy, 
he  acts  fraudulently  and  violates  integrity  and  fair  dealing.^ 
The  same  rule  applies  to  the  case  where  a  party  pays  money  in 
ignorance  of  circumstances  with  which  the  receiver  is  ac- 
quainted, and  does  not  disclose,  and  which,  if  disclosed,  would 
have  prevented  the  payment.  In  that  case  the  parties  do  not 
deal  on  equal  terms,  and  the  money  is  held  to  be  unfairly  ob- 
tained and  may  be  recovered  back.* 

So  also,  and  upon  the  same  principle,  there  is  fraud,  if  a 
man  wishing  to  advance  an  undertaking,  in  which  he  was  inter- 
ested, determines  to  purchase  shares  in  it,  and  another  person, 
also  interested  in  the  undertaking,  takes  advantage  of  the 
knowledge  he  possesses  of  the  intention  of  the  former  to  defeat 
the  particular  act,  whereby  he  sought  to  accomplish  his  object, 
and  to  substitute  in  the  place  of  it  a  mode  of  disposing  of  a 
portion  of  his  own  interest  in  the  undertaking.^ 

Mere  reticence  does  not  amount  to  a  legal  fraud,  however 

'  Baslehole  v.  Walters,  3  Camp.  154 ;  '  1  Ves.  96,  per  Lord  ITartlwicke. 

Schneider  v.  Heath,  ih.  506.     See  Pick-  ■*  Martin  v.  iMorgan,  1  Bro*l.  &  Bing. 

erino-  ,..  Dowson,  4  Taunt.  784;  Kain  i'.  289.     See  Ileane  v.  Rogers,  9  B.  «fc  C. 

Okl,''2  B.  &  C.  634  ;  Taylor  i'.  Bulien,  5  677,  per  Bayley,  J. 

Exch.  779.  *  Blake  v.  Mowatt,  21  Beav.  614 

»  Flint  V.  Woodin,  9  Ha.  621. 


100  MISREPEESENTATTON. 

it  ma}  be  viewed  by  moralists.  Either  party  may  be  innocently 
silent  as  to  ground  open  to  both  to  exercise  tbeir  judgment 
upon.  If  the  parties  are  at  arms'  length  neither  of  them  is 
under  any  obligation  to  call  the  attention  of  the  opposite  party 
to  facts  or  circumstances  which  lie  properly  within  his  knowl- 
edge, although  he  may  see  that  they  are  not  actually  within  his 
knowledge.^  But  a  man  may  by  mere  silence,  without  active 
concealment,  produce  a  false  impression  on  the  mind  of  another. 
Aliiid  est  celarfi,  aliud  tacere ;  neque  enim  id  est  celare,  quio- 
quid  reticeas ;  sed  cum,  quod  tu  scias,  id  ignorare,  emolu- 
menti  tui  causa,  velis  eos  quorum  intersit  id  scire J^  Silence 
implies  assent  when  there  is  a  duty  to  speak.  Qui  tacet  con- 
sentire  videtur  ;  qui  ])otest  et  debet  vetare,  jubet?  If  a  man 
by  his  silence  produces  a  false  impression  on  the  mind  of 
another,  there  is  a  fraud.*  In  Hill  v.  Gray,^  where  a  man 
bought  a  picture  under  a  delusion  as  to  the  ownership  of  it, 
and  the  agent  of  the  vendor  encouraged  the  delusion  and  took 
advantage  of  it  in  effecting  a  sale.  Lord  Ellenborough  held  the 
contract  might  be  avoided  on  the  ground  of  fraud.* 

If  a  man  interested  is  present  and  hears  any  false  or  imper- 
fect representation  made,  and  does  not  set  it  right,  he  is  fixed 
by  the  representation.' 

A  vendor  is  by  the  civil  law  bound  to  warrant  the  thing  he 
sells  or  conveys,  albeit  there  be  no  express  warranty ;  but  the 
common  law  binds  him  not,  unless  there  be  a  warranty  either 
in  deed  or  law.     Co/veat  emptor  is  the  ordinary  rule  of  the 

'  ArchbolO  V.  Lord   Howth,  L.  R.  Ir.  ■•  See  infra. 

2  C.  L.  60S.     See  Walters  i'.  Morgan,  3  *  1  Stark.  434. 

D.  F.  <fc  J.  723.  ^  See  Keates  v.  Lord  Cadogan,  10  0. 

«  Ciceri)  ile  Offic.  lib.  3,  chap.  12,  per  B.  600. 

Lord  Mansfield.  3  Burr.  1910,  ;)€»•  Lord  '  Shepherd  v.  Sharpe,  4  L.  T.   270; 

Abinger,  6  M.  &  W.  381 ;  Kelthorpe  v.  Davies  v.   Davies,  6  Jur.   N.   S.    1322. 

Holgate,  1  Coll.  221,  ^jer  Knight  Bruce,  See  Smith  v.  Bank  of  Scotland,  1  Dow. 

L.  J.  272;    Warner  v.  Daniels,   1    Wood  & 

'  Morgan  v.  Evans,  3  CI.  &.  Fin.  205;  Min.  (Amer.)  90. 
Burke  v.  Trior,  15  Ir.  Ch,  106. 


MISEEPKESENTATION.  101 

common  law.^*  If  tlie  defects  in  the  subject-matter  of  sale 
are  patent,  or  such  as  might  and  should  be  discovered  by  the 
exercise  of  ordinary  vigilance,  and  the  buyer  has  an  opportunity 
of  inspecting  it,  the  law  does  not  require  the  seller  to  aid  and 
assist  the  observation  of  the  purchaser,  f  Even  a  warranty 
will  not  cover  defects  that  are  plainly  the  objects  of  sense.^ 
Defects,  however,  wliich  are  latent,^  or  circumstances  materially 
the  subject-matter  of  sale  of  which  the  purchaser  has  no  means, 
or  at  least  has  not  equal  means  of  obtaining  knowledge,  must, 
if  known  to  the  seller,  be  disclosed.  "Where,  for  instance, 
particulars  of  sale  described  the  subject  of  sale  as  a  certain 
interest,  if  any,  the  vendor  knowing  at  the  time  that  it  was  of 
no  value,  whereas  the  purchaser  had  no  means  of  ascertaining 
whether  it  was  of  any  value  or  not,  the  transaction  was  held 
fraudulent!  So  also  on  the  sale  of  a  ship,  which  had  a  latent 
defect  known  to  the  seller,  and  which  the  buyer  could  not  by 
any  attention  possibly  discover,  the  seller  was  held  bound  to 
disclose  it.^  So  also  where  a  man  sold  an  estate  to  another 
knowing  or  having  reason  to  know  at  the  time,  but  concealing 
the  fact  that  part  of  the  land  was  an  encroachment  upon  a  com- 
mon to  which  he  had  no  title,  the  sale  was  set  aside  as  having 
been  effected  by  fraud.**  So  also  if  one  of  the  parties  to  a 
transaction  knows  that  the  solicitor  of  the  other  party  has  not 

*  Co.  Litt.   102  a,  Hob.  99,  Broom's  '  Mellish  v.  Motteux,  Peake,  156. 

Lejj.  Max.  730.  *  Smith  v.  Harrison,  26  L.  J.  CIi.  41  i 

'•' Dyer   v.    Hirgrave,   10  Ves.    507;  ^  Mellish  v.  Motteux,  Peake,  156. 

Grant  v.  Munt,  (  oop.  1Y3;  Jennings  v.  ®  Edwards  v.  M'Cleay,  2  Sw.  287. 
Broughton,  5  D.  M.  &  G.  131 ;  Horsfall 
V.  Thomas,  1  U.  &  C.  100. 


*  Salem  India  Rubber  Co.  v.  Adams,  23  Pick.  256  ;  Wintz  ii.  Morrison, 
17  Tex.  372;  Cecil  v.  Spurger,  32  Mo.  462;  Turner  v  Huggins,  14  Ark 

21. 

t  Buck  V.  McCaugbtry,  5  Mon.  216  ;  Barnett  v.  Stanton,  2  Ala.  181  ; 
McKinney  v.  Fort,  10  Tex.  2i?0;  Lawnson  v.  Baer,  7  Jones,  401  ;  Kcading 
e.  Price,  3  J.  J.  Marsb.  Gl;  Cardwell  v.  McClelland,  3  Sneed,  150;  Barron 
V.  Alexander,  27  Mo.  530. 


102  MISREPKESEI?TATION. 

disclosed  lo  liim  some  matter  of  a  material  nature,  tlie  conceal- 
ment may  be  fraudulent.^  So  also  if  a  creditor  compounds 
with  liis  debtor  under  a  false  impression  in  which  the  debtor 
knowingly  leaves  him  as  to  the  extent  of  the  debtor's  estate, 
there  is  a  fraud.^ 

A  vendor,  however,  is  not  bound  to  state  that  the  property 
has  been  recently  valued  at  a  sum  greatly  less  than  the  in- 
tended purchaser's  money,  or  that  the  tenant  iias  complained 
of  the  rent  as  being  excessive.^ 

A  vendor  may,  on  the  sale  of  chattels,  expressly  stipulate 
that  the  buyer  is  to  take  the  chattels  "  with  all  faults."  In 
such  case  it  is  immaterial  how  many  faults  there  are  within  his 
knowledge  ;  but  he  may  not  use  any  artifice  to  disguise  them, 
or  to  prevent  the  buyer  from  discovering  them.^  *  Upon  the 
same  principle  it  would  appear  that  if  the  defects  are  of  such  a 
nature  that  they  cannot  be  discovered  by  any  attention  what- 
ever on  the  part  of  the  purchaser,  the  insertion  of  the  condition 
will  not  excuse  the  vendor  from  disclosing  those  within  his 

knowledge.' 

The  maxim  caveat  emptor  applies  with  certain  specific 
restrictions  and  qualifications,  both  to  the  title  and  quality  of 
the  subject-matter  of  sale.  In  the  case  of  real  estate  the 
vendor  must  produce  to  the  purchaser  all  documents  of  title  in 
his  possession  or  power,  and  give  information  of  all  material 
facts  not  apparent  thereon.®     Any  charge  upon  the  estate,  or 

»  Solomon  v.  nonywood,   12  W.  R.  ■•  Eagleliole  v.  Walters,  3  Camp.  154; 

51^2.  Sclmeider  v.   Heath,  ib.  5u6,  supra,  p. 

2^  Vine  V.  Mitchell,  1  Mood.  <fe  Rob.  98. 

337.  "  Siig.  V.  h  P.  14th  ed.  p.  333. 

'  Abbott  «.  Sworder,  4  Deg.  <fc  S.  448,  Mulwards   v.    M'Cleay,  Coop.    308; 

4C0.  Dart's  V.  &  W  51. 


*  These  terms  put  upon  the  purchaser  no  risk  or  hazard  but  those  which 
are  consistent  with  the  property  being  such  as  it  is  described.  Smith 
V.  Richards,  13  Pet.  26;  Pcarce  v.  Blackwell,  13  Ired.  49;  Terry  v.  Buck, 
1  Green's  Ch  0C6. 


MISREPRESENTATION.  103 

right  restrictive  of  the  purchaser's  absohite  enjoyment  of  it, 
and  the  release  of  which  cannot  be  procured  by  the  vendoi's, 
ghould  be  stated ;  or  the  omission  may,  in  many  cases,  render 
the  sale  voidable  by  the  purchaser ;  ^  *  e,  g.  a  right  of  sporting 
over  the  estate,^  a  right  of  common  every  third  year,^  a  right 
to  dig  for  mines,*  a  liability  to  repair  the  church  chancel,^  or 
any  other  riglit  or  liability  which  cannot  fairly  admit  of  com- 
pensation,^ or  would  render  the  estate  different  in  substance 
from  what  the  purchaser  was  justified  in  believing  it  to  be,' 
would,  if  undisclosed,  have  that  effect.^ 

A  vendor  need  not,  however,  direct  attention  to  defects, 
&c.,  apparent  on  the  title-deeds,^  f  or  to  any  matter  of  which 
the  purchaser  has  actual  or  constructive  notice.^**  But  if  the 
seller  be  informed  by  the  purchaser  of  his  object  in  buying, 
and  the  lease  contains  covenants  which  defeat  that  object,  mere 
silence  is  fraudulent  concealment.^^  If  there  has  been  no  fraud- 
ulent concealment  on  the  part  of  the  seller,  but  the  title  turns 
out  to  be  defective,  the  rule  caveat  eiriptor  applies,  and  the  pur- 
chaser has  no  remedy,  unless  he  take  a  special  covenant  or  war- 


»  Dart's  V.  &  P.  73.  '  Dart's  V.  &  P.  74. 

"  Burnell  v.  I'-rown,  1  J.  &  W.  172.  '  Supra,  pp.  58,  C3,  64. 

3  Gibson  v.  Spurrier,  Te.a.  Ad.  c.  50.  *  See,  further,  D.nrt's  V.  &  P.  74,  75. 

*  Seaman  v.  Vawdrey,  IG  Yes.  390.  '  Siig.  V.  &  P.  8. 

»  Forteblow  v.  Sliirley,  cited  2   Sw.  "•  1 'art's  V.  &  P.  57.  74. 

223  "  Flight  V.  Barton,  3  M.  <t  K.  282. 


*  Prout  V.  Roberts,  32  Ala.  427 ;  Ilalbcrt  v.  Grant,  4  Mon.  580 ;  Ingram 
V.  Morgan,  4  Humph.  G6 ;  Steele  v.  Kiiikle,  3  Ala.  353;  Carr  v.  Cal- 
la£?lian,  3  Litt.  216  ;  Kennedy  v.  Johnson,  2  Bibb,  12;  Campbell  v.  Whit- 
tingham,  5  J.  J.  Marsh.  96  ;  Pollard  v.  Rogers,  4  Call,  239 ;  Snelsou  &  Co. 
V.  Franklin,  6  Munf.  210;  Davidson?).  Moss,  4  How.  (Miss.)  673. 

If  a  previous  incumbrance  is  concealed,  the  fact  that  it  is  recorded  is 
immaterial.  Napier  v.  Elam,  6  Yerg.  108  ;  Young  «.  Hopkins,  6  Mon.  23; 
Campbell  v.  Whittingham,  5  .J.  J.  Marsh.  96;  Steele  r.  Kiuklc,  3  Ala.  352; 
Kennedy  v.  Johnson,  2  Bibb,  12. 

t  Ward  V.  Packard,  18  Cal.  391;  Alston  t?.  Outerbridge,  1  Dcv.  Ch.  18. 


104 


MISEErRESEXTATIOliJ'. 


ranty.^  *  A  seller  selling  in  good  faith,  is  not  responsible  for  the 
goodness  of  the  title  bej'^ond  the  extent  of  his  covenants.^ 

There  is  no  implied  warranty  on  a  demise  of  real  or  lease- 
hold property,  that  it  is  fit  for  the  purposes  for  which  it  is 
taken.^  The  purchaser  takes  the  risk  of  its  quality  and  condi- 
tion, unless  he  protects  himself  by  an  express  agreement  on 
the  subject/  There  is  no  implied  duty  cast  on  the  owner  of  a 
house  in  a  ruinous  and  unsafe  condition  to  inform  a  proposed 
tenant,  that  it  is  unfit  for  habitation,  nor  will  an  action  of 
deceit  lie  aijainst  him  for  omittino^  to  disclose  the  fact  :^  but  a 
seller  must  not,  during  a  treaty  for,  or  while  intending  a  sale, 
endeavor  to  conceal  a  defect,  or  to  divert  a  purchaser's  atten- 
tion from  it.' 

In  the  case  of  a  sale  of  goods  and  chattels,  the  rule  caveat 
emptor  applies  to  the  title,  unless  the  seller  knows  that  he  has 


•  Parkinson  v.  Lee,  2  East,  323,  per 
Lawrence,  J. ;  Stephens  v.  Medina,  4 
Q.  B.  428,  Broi.m's  Leg.  Max.  '743. 

■^  See  Bree  c.  Holbech,  Dou<il.  655. 

'  Sutton  V.  Temple,  1 2  M.  it  W.  52  ; 
Hart  V.  Windsor,  12  M.  &  W.  68; 
Keates  v.  Cadogan,  10  C.  B.  591 ;  Chap- 


pell  V.  Gregory,  34  Beav.  250 ;  but  see 
Smith  V.  Marrable,  11  M.  &  W.  6.  See 
Broom's  Leg.  Max.  744-Y46. 

*  Izon  V.  Gorton,  5  Bing.  N.  C.  501 ; 
Surplice  v.  Farnsworth,  7  M.  &  G.  576. 

'  Keates  v.  Cadogan,  10  C.  B.  691. 

=  Dart's  V.  &  P. "56. 


*  Abbott  V.  Allen,  2  Johns.  Ch.  519;  Chcsterman  n.  Gardner,  5  Johns. 
Ch.  29;  Wallace  v.  Barlow,  3  Bibb,  171 ;  Jasper  «.  Hamilton,  3  Dana,  280; 
Manney  «.  Porter,  3  Humpli.  347;  Frost  i3.  Raymond,  2  Caines,  188 ;  Wil- 
liamson V.  Raney,  1  Freem.  112. 

When  the  vendor  knows  that  the  property  has  no  existence,  he  com- 
mits a  fraud  by  selling.  Wardell  v.  Fosdick,  13  Johns.  325;  Terry  v. 
Buck,  1  Green's  Ch.  366. 

If  the  vendor  knows  that  he  has  no  title,  and  conceals  that  fact,  the 
sale  is  fraudulent.  Clark  v.  Baird,  9  N.  Y.  183;  Johnsons.  Pryor,  5  Hey, 
243;  Beardsley  -c.  Bennett,  1  Day,  107. 

If  the  property  is  known  to  the  vendor  to  be  worthless,  he  cannot  pro- 
tect himself  by  telling  the  vendee  to  inquire  for  himself.  (Terry  v.  Buck, 
1  Green's  Ch.  360 

A  man  who  buys  a  defective  title  knowing  it  to  be  so,  must  abide  the 
consequences.  Williamson  v.  Raney,  1  Freem.  112;  Aliens).  Hopson,  1 
Freem.  276. 


MISEEPRESENTATIO:sr.  105 

no  title  and  conceals  the  fact,  or  unless  the  surrounding  cir- 
cumstances of  the  case  are  such  that  a  warranty  may  be  im- 
plied.^* In  the  ordinary  case,  for  instance,  of  the  sale  of 
goods  in  a  shop,  there  is  a  warranty  of  title,  for  the  seller,  by 
the  very  act  of  selling,  holds  himself  out  to  the  buyer  that  he 
is  the  owner  of  the  articles  he  offers  for  sale.'^  If,  however, 
the  surrounding  circumstances  are  such  that  the  seller  must  be 
taken  to  be  merely  selling  such  a  title  as  he  has  himself  in  the 
goods,  the  maxim  applies,  and  there  is  no  warranty  of  title.^ 

The  question  as  to  the  application  of  the  maxim  caveat 
emptor  on  the  sale  of  goods  in  respect  to  the  quality  of  the 
goods,  was  elaborately  considered  by  the  Court  of  Queen's 
Bench  in  a  very  late  case/  The  cases  on  the  subject  were  dis- 
tinguished as  falling  under  five  different  heads  : 

'  Marley  v.   Attenborough,   3  Exch.  Chapman    v.   Speller,    14    Q.   B.  621 ; 

500  •    Hall  V.  Conder,  2  C.  B.  N.  S.  40  ;  Sims  v.  Marry  at  t,  17  Q.  B.  291 ;  Bague- 

Eichholtz  V.  Bannister,   17  C.  B.  N.  S.  ley  v.  Hawley,  L.  R.  2  C.  P.  629.     See 

(708.  Eichholtz  V.  Bannister,  17  C.  B.  N.  S. 

«  Eichholtz  V.  Bannister,  17  C  B.  N.  708. 

S.  708.  ■•  Jones  v.   Just,  L.  R.  3  Q.  B.  197, 

^  Marley  v.   Attenborough,   3  Exch.  202. 
600;   HaU  v.  Conder,  2  C.  B.  N.  S.  22; 


*  It  is  a  general  and  familiar  principle  that  there  exists  in  every  sale  of 
personal  property  an  implied  warranty  of  title.  Mockbee  v.  Gardner,  2 
H.  &  G.  177  ;  Boyd  v.  Bopst,  2  Dall.  91 ;  Coolidge  v.  Brigham,  1  Met.  551  ; 
Lamis  v.  Auld,  7  Murph.  138;  Dean  «.  Mason,  4  Ct.  428  ;  Payne  tj.  Rodden, 
4  Bibb,  304  ;  Hermance  v.  Vernoy,  6  Johns.  8 ;  Case  v.  Hall,  29  Wend. 
103;  Colcock  0.  Reed,  3  McCord,  513;  Dorsey  v.  Jackman,  1  S.  &  R.  42; 
Strong  V.  Barnes,  11  Vt.  221 ;  Chandler  v.  Wiggins,  4  B.  Mon.  201. 

When  the  vendor  i?  in  possession  of  the  property  sold,  there  is  an  im- 
plied warranty  of  title.  Long  v.  Hickingbottom,  28  Miss.  772 ;  Robinson 
«.  Rives,  20  Mo.  229 ;  Huntington  v.  Hall,  36  Me.  501  ;  McCoy  v.  Artcher, 
3  Barb.  323;  Colcock  «.  Reed,  3  McCord,  513;  Reed  ?;.  Barber,  5  Cow. 
272 ;  Norton  v.  Hooten,  17  Ind.  365  ;  Sherman  v.  Champlain  Trans.  Co.  31 
Vt.  162 ;  Scranton  v.  Clark,  39  Barb.  273. 

This  implied  warranty  extends  to  a  prior  lien  or  incumbrance.  Maine 
V.  King,  8  Barb.  535. 

When  the  vendor  is  not  in  possession  of  the  goods,  the  purchaser  buys 
at  his  peril,  unless  there  is  an  express  warranty  of  title.     Edick  v.  Crim. 
10  Barb.  445 ;  Lackey  v.  Stouder,  2  Ind.  376  ;  Scott  v.  Uix,  2  Snecd.  192. 
8 


106 


MISREPRESENTATION. 


"  1st.  AVhere  floods  are  in  esse,  and  may  be  inspocted  by 
the  buyer,  and  there  is  no  fraud  on  the  part  of  the  seller,  the 
maxim  caveat  emptor  applies,  even  though  the  defect  is  latent, 
and  not  discoverable  on  examination,  at  least  where  the  seller 
is  neither  the  manufacturer  nor  the  grower.^  The  buyer,  in 
such  case,  has  the  opportunity  of  exercising  his  judgment 
upon  the  matter ;  and  if  the  result  of  the  inspection  be  un- 
satisfactory, or  if  lie  distrusts  his  own  judgment,  he  may,  if  he 
chooses,  requi]-e  a  warranty.  In  such  a  case  it  is  not  an  im- 
plied term  of  the  contract  of  sale  that  the  goods  are  of  any 
particular  quality,  or  are  merchantable.^* 

"  2ndly.  Where  there  is  a  sale  of  a  definite  existing  chattel 
specifically  described,  the  actual  condition  of  which  is  capable 
of  being  ascertained  by  either  party,  there  is  no  implied 
warranty.^  f 

"  3rdly.  Where  a  known,  described  and  defined  article  is 
ordered  of  a  manufacturer,  although  it  is  stated  to  be  required 
by  the  purchaser  for  a  particular  purpose,  still  if  the  known, 
described  and  defined  thing  be  actually  supplied,  there  is  no 


*  Parkinson  v.  Lee,  2  East,  314. 
»  Emmerton   v.  Matthews,  7  IL  <fe  N. 
586,  31  L.  J.  Exch.  139. 


»  Barr  v.  Gibson,  3  M.  &  W.  390. 


*  Stevens  v.  Smith,  21  Vt.  90  ;  Osgood  v.  Lewis,  2  H.  &  G.  49G  ;  Jolm- 
ston  'V.  Cope,  2  H.  «&  J.  89  ;  Williams  v.  Stougbton,  3  Miss.  347;  Kings- 
bury V.  Taylor,  29  Me.  508;  Scott  v.  Renick,  1  B.  Mon.  63;  Mixer  v.  Co- 
burn,  11  Met.  559;  Ricbardsonv.  Johnson,  1  La.  An.  389. 

The  exception  only  applies  to  those  cases  where  the  inspection  is  im- 
practicable, as  where  goods  are  sold  before  their  arrival  or  landing.  The 
mere  fact  tbat  inspection  is  attended  with  inconvenience  or  labor,  is  not 
equivalent  to  impracticability.     Hyatt  v.  Boyle,  5  G.  &  J.  110. 

In  every  executory  contract  for  the  future  sale  and  delivery  of  articles 
of  merchandise,  the  law  clearly  implies  an  agreement  tbat  the  goods  sball 
be  of  a  merchantable  value.     Hamilton  v.  Ganyard,  34  Barb.  204. 

t  AVilliams  v.  Slaughter,  3  AYis.  C47 ;  Deming  v.  Foster,  42  N.  H.  1G5  ; 
Dickens  r.  Jordan,  11  Iretl.  106;  Gihon  v.  Levy,  2  Ducr,  176;  Carson  v. 
Bailie,  19  Penn.  375. 


MISREPRESENTATlOir.  107 

warranty  tliat  it  shall  answer  the  particular  purpose  intended 
by  the  buyer.^ 

"  ttthly.  Where  a  manufacturer  or  dealer  contracts  to  sup- 
ply an  article  which  lie  manufactures  or  produces,  or  in  which 
he  deals,  to  be  applied  to  a  particular  purpose,  so  that  the 
buyer  necessarily  trusts  to  the  judgment  or  skill  of  the  manu- 
factm*er  or  dealer,  there  is  in  that  case  an  implied  term  or  war- 
ranty that  it  shall  be  reasonably  fit  for  the  purpose  to  which  it 
is  to  be  applied.^  *  In  such  a  case,  the  buyer  trusts  to  the 
manufacturer  or  dealer,  and  relies  upon  his  judgment  and  not 
upon  his  own. 

"  5th]y.  "Where  a  manufacturer  undertakes  to  supply  goods 
manufactured  by  himself,  or  in  which  he  deals,  but  which  the 
vendee  has  not  had  the  opportunity  of  inspecting,  it  is  an  im- 
plied term  in  the  contract  that  he  shall  supply  a  merchantable 
article.^  So,  also,  on  a  sale  by  a  tnerchant  to  a  merchant  or 
dealer,  who  has  had  no  opportunity  of  inspection,  tliere  is  an 
implied  warranty  that  tbe  article  shall  be  reasonably  fit  for  the 
pui'pose  for  which  it  is  supplied."*  In  every  contract  to  supply 
goods  of  a  specified  description,  which  the  buyer  has  no  op- 
portunity of  inspecting,  the  goods  must  not  only  in  fact 
answer  the  specific  description,  but  must  also  be  saleable  and 
merchantable  under  that  description."' 

>  Chanter  v.  Hopkins,  4  M.  <k  W.  399  ;  Taunt.  108  ;    Shepherd  v.  Pybus,  3  M. 

Ollivant  V.  Baylcy,  5  Q.  3.  288.  d:  G.  868. 

^  Brown    v.   Edgington,    2  M.    &  G.  ■•  Eigge  v.  Parkinson,  7  H.  «fe  N.  955; 

279;  Jones  v.  Wright,  5  Bing.  53  i.  31  L.  J!  Exch.  301. 

'  Laing  v.   Fidgeon,  4   Camp.  1C9,  6  ^  Jones  v.  Just,  L.  R.  3  Q.  B.  191. 


*  Brenton  v.  Davis,  8  Bluckf.  508 ;  Beers  r.  Williams,  16  111.  69;  Wal- 
ton V.  Cod3%  1  Wis.  420 ;  Brown  v.  Murphtc,  31  Miss.  91 ;  Cunnini^^liain  v. 
Hull,  Sprague,  404;  Hoe  v.  Sanborn,  21  N.  Y.  552;  Rodgers  v.  Niles,  11 
Ohio  St.  R.  48 ;  Page  v.  Ford,  42  Ind.  46  ;  Howard  v.  Hoey,  23  Wend. 
350 ;  Miner  v.  Granger,  4  Gilinan,  69 ;  Taylor  v.  Sands,  5  Johns.  493 ; 
Overton  v.  Phelau,  3  Head,  445;  Fisk  v.  Tank,  13  Wis.  376;  Penss  v. 
Sabin,  38  Vt.  433  ;  Freeman  v.  Clute,  3  Barb.  431 ;  Gallagher  v.  Waring,  9 
Wend.  20  ;  Getty  v.  Rountree,  3  Chaud.  28. 


108  MISEEPEESEKTATION. 

The  rule  caveat  emjytor  renders  it  lawful  for  a  man  holding 
shares  in  an  insolvent  companj^  to  sell  them  to  any  one  willing 
to  buy  them,  and  in  the  absence  of  misrepresentation  by  the 
seller,  the  buyer  is    apparently  without  any  remedy  against 

him.^ 

The  mere  omission  of  a  purchaser  of  property  to  disclose 
his  insolvency  to  the  vendor,  is  not  a  fraud  for  which  the  sale 
may  be  avoided.  If  no  inquiries  are  made,  and  the  vendee 
makes  no  false  statements,  nor  resorts  to  any  artifice  or  con- 
trivance for  the  purpose  of  misleading  the  vendor,  it  is  not 
in  general  fraudulent  in  him  to  remain  silent  as  to  his  pecun- 
iary condition.  An  honest  though  abortive  purpose  to  con- 
tinue in  business,  and  pay  for  the  goods,  is  consistent  with  the 
vendee's  knowledge  of  his  own  insolvency.*     But  there  may 

»  See  Remfrey  v.  Butler,  El.  Bl.  &  El.  887  ;    Stray  v.  Russell,  1  El.  &  El.  888. 


*  Cross  v.  Peters,  1  Greenl.  378;  Nicliols  v.  Pinner,  18  K  Y.  295 ; 
Bidault  V.  Wales,  19  Mo.  36  ;  s.  c.  20  Mo.  546 ;  Mitcliell  v.  Worden,  20 
Barb.  253 ;  Henstaw  v.  Bryant,  4  Scam.  97. 

Wlien  a  person,  who  knows  liimself  to  be  insolvent,  by  means  of  fraud- 
ulent pretences  or  representations,  obtains  possession  of  goods  under  a 
pretence  of  purchase  with  the  intention  not  to  pay  for  them,  but  with  the 
design  to  cheat  the  vendor  out  of  them,  a  court  of  chancery  will  set  aside 
the  sale  if  they  have  not  passed  into  the  hands  of  a  hona  fide  purchaser ; 
or  the  vendor  may  bring  replevin  or  trover  for  them.  Durell  v.  Haley,  1 
Paio'e,  492 ;  Lupin  v.  Marie,  2  Paige,  172 ;  Lloyd  v.  Brewster,  4  Paige,  541 ; 
Van  Cliff  ■y.  Fleet,  15  Johns.  147;  Allison  v.  Matthieu,  3  Johns.  235; 
Rowley  V.  Bigclow,  12  Pick.  312;  Hitchcock  v.  Covill,  20  Wend.  167;  Ask 
V  Putnam  1  Hill,  302  ;  Eoot  v.  French,  18  Wend.  570 ;  Zabriskie  »  Smith, 
13  N.  Y.  330 ;  Hunter  v.  Hudson  River  Iron  Co.,  20  Baib.  493. 

In  order  to  render  a  sale  void  on  account  of  misrepresentations  as  to 
solvency,  such  a  case  must  be  made  out  as  would  authorize  a  jury  to  con- 
vict the  purchaser  of  obtaining  goods  under  false  pretences.  The  means 
used  to  defraud  must  be  such  that  a  man  of  ordinary  prudence  would  be- 
come the  dupe  of  the  deception.     Henshaw  v.  Bryant,  4  Scam.  37. 

A  purchase  by  a  person  who  knows  himself  to  be  insolvent,  and  has  no 
reasonable  expectation  to  pay  for  the  goods,  is  fraudulent.  Powell  v. 
Bradlee  9  G.  «&  J.  220 ;  Chaffee  v.  Fort,  2  Lans.  81 ;  Seligman  v.  Kalkman, 


MISEEPRESENTATIOIT.  109 

be  circumstances  under  whicli  the  concealment  of  a  material 
and  sudden  change  in  the  circumstances  of  a  purchaser  which 
he  has  reason  to  suppose  to  be  unknown  to  a  vendor,  may 
amount  to  a  fraud.^  A  dealer,  for  instance,  who  has  been  of 
known  standing,  but  has  suddenly  failed  in  business,  cannot 
go  to  those  who  were  acquainted  with  his  former  position,  but 
have  not  heard  of  his  failure,  and  innocently  purchase  prop- 
erty on  credit.^  So,  also,  there  is  fraud  if  a  vendee  obtain 
goods  upon  credit,  with  a  preconceived  fraudulent  design  not 
to  pay  for  them.^  * 

*  Nichols  V.  Pinner,  4  Smith  (Amer.)  *  Brown    v.    Montgomery,    6    Smith 

295 ;    Brown  v.  Montgomery,  6  Smith       (Amer.)  287. 

(Amer.)  287.  ^  Hennequia    v.    Naylor,    10    Smith 

(Amer.)  140. 


8  Cal.  207  ;    Conyers  v.  Ennis,  2  Mason,  236 ;    Rowley  v.  Bigelow,  12  Pick. 
307 ;  contra.  Biggs  v  BaiTy,  2  Curt.  259 ;  Hall  v.  Naylor,  6  Duer,  71. 

A  contract  is  not  invalidated  because  one  party  is  mistaken  in  regard 
to  the  solvency  of  the  other;  nor  is  a  mutual  mistake  as  to  the  solvency 
of  the  vendee,  sufficient.     Lupin  v.  Marie,  6  Wend.  77. 

The  sale  is  void  if  the  i)urcliaser  is  insolvent  at  the  time  of  receiving 
tte  goods     Pike  v.  Wieting,  49  Barb.  314. 

There  is  a  veiy  broad  line  of  distinction,  both  in  morals  and  law,  be- 
tween the  conduct  of  one  who  gets  property  into  his  possession  with  a 
preconceived  design  never  to  pay  for  it  under  color  of  a  formal  sale 
induced  by  a  sham  promise  to  pay,  which  the  party  never  intends  to  com- 
ply with,  and  the  conduct  of  a  man  deeply  involved  in  debt,  far,  perhaps, 
bevond  his  means  of  payment,  and  who  struggles,  it  may  be,  and  fre- 
quently is,  against  all  rational  hope  to  sustain  his  credit,  buys  jjroperty  on 
a  promise  to  pay  for  it  on  short  time  in  order  to  raise  money  from  day  to 
day,  to  meet  immediate  and  more  pressing  demands.  Bidault  v.  Wales, 
20  Mo  546. 

When  a  person  has  committed  an  open  and  notorious  act  of  insolvency, 
it  is  his  duty  to  communicate  that  fact  to  parties  with  whom  he  has  pre- 
viously dealt  before  he  makes  a  new  ])urchase,  and  the  violation  of  such 
duty  is  a  fraud.  Mitchell  v.  Worden,  20  Barb.  253 ;  Pequeuo  v.  Taylor,  38 
Barb.  375  ;  Chaffee  v.  Fort,  2  Lans.  81. 

*  Heuncquin  v.  Naylor,  24  N.  Y.  139 ;  Durell  v,  Haley,  1  Paige,  492 
Harris  v.  Alcock,  10  G.  &  J.  226  ;  Lane  v.  Robinson,  18  B.  Mon.  623 
Buckley  c.  Artcher,  21  Barb.  585;    Mackinley  v.  McGregor,  3  Whart.  369 


110  MISRBPRBSENTATION. 

Tne  same  rules  as  to  false  and  deceptive  statements,  which 
are  applicable  to  contracts  between  individuals,  are  also  appli- 
cable to  contracts  between  an  individual  and  a  company.  ]^o 
misstatement  or  concealment  of  any  material  fact  or  circum- 
stances ought  to  be  permitted  in  a  prospectus  to  invite  persons 
to  become  shareholders  in  a  projected  company.  The  public, 
who  are  invited  by  a  prospectus  to  join  in  any  new  adventure, 
ought  to  have  the  same  opportunity  of  judging  of  everything 
which  has  a  material  bearing  on  its  true  character,  as  the  pro- 
moters themselves  possess.  The  promoters  of  companies,  who 
invite  persons  to  take  shares  on  the  fliith  of  representations 
contained  in  prospectuses,  are  bound  to  state  everything  with 
strict  and  scrupulous  accuracy,  and  not  only  to  abstain  from 
stating  as  a  fact  that  which  is  not  so,  but  to  omit  no  one  fact 
within  their  knowledge,  the  existence  of  which  might  in  any 
way  affect  the  nature,  or  extent,  or  quality  of  the  privilege  or 
advantage  which  the  prospectus  holds  out  as  an  inducement  to 
take  shares.  It  cannot  be  too  strongly  pressed  upon  those 
who,  having  projected  an  undertaking,  are  desirous  of  obtain- 
ing the  co-operation  of  persons  who  have  no  other  information 
on  the  subject  than  that  which  they  choose  to  convey,  that  the 
utmost  candor  and  honesty  ought  to  characterize  their  pub- 
lished statements.^  It  is  not  merely  by  one  or  two  statements 
in  the  prospectus  which  are  not  borne  out  by  the  facts,  that 

'  New  Eriinswick,  <fec.,  Railway  Co.  Kisch,  L.  R.  2  App.  Ca.  113,  114.     See 

«.  Mii^n-ei-idge,  1  Dr.  <fc  Sm  381,  382;  Kent    v.   Freehold    Laud    and    Erick- 

Re    Reese    faver   Silver    Mining-   Co.,  makine;  Co.,  L.  R.  4  Eq.  599;   Hender- 

Smiih's  Case,  L.   R.  2  Ch.   App.  009 ;  son  v.  "Lacon,  L.  R.  5  Eq.  262 ;  Chester 

Central   Railway   Co.    of    Venzuela   v.  v.  Spargo,  16  W.  R.  576. 


contra,  Backcntoss  v.  Spdcber  31  Penn.  324  ;    Smith  v.  Smith,  21  Penn. 

367. 

The  intention  never  to  pay  for  goods  may  be  evidenced  by  a  resale  of 
them  at  a  sacrifice,  an  assignment  in  insolvency,  or  to  a  favored  creditor, 
or  other  circumstances.  Eidault  v.  Walos,  19  Mo.  36;  H^uaeqaiu  v.  Nay- 
lor,  34  N.  Y.  139 ;  Mackinley  v.  McGregor,  3  Whart.  369. 


MISREPRBSENTATIOIf.  IH 

the  matter  ought  to  be  tried,  but  by  the  combined  effect  of 
them  all,  producing  a  result  which  would  have  misled  any  per- 
son who  took  shares  on  the  faith  of  the  prospectus.^  Though 
certain  statements  or  suppressions  standing  alone,  might  not 
be  sujfficient  ground  to  give  a  man  a  right  to  have  a  transac- 
tion set  aside,  yet  another  part  of  the  case  may  lead  to  a 
diiferent  conclusion,  and  reflect  upon  the  general  fairness  of 
the  prospectus,  even  in  those  particulars.^  That  a  man,  who 
was  induced  to  take  shares  by  misrepresentation  or  conceal- 
ment, was  actually  a  member  of  the  company  at  the  time,  is 
immaterial ;  but  it  is  material  that  to  relieve  him  from  the 
transaction  would  prejudice  the  interests  of  an  innocent  share- 
holder who  had  acquired  them  after  he  had  become  a  share- 
holder.^ 

Those  w^lio,  having  a  duty  to  perform,  represent  to  those 
who  are  interested  in  the  performance  of  it,  that  it  has  been 
performed,  make  themselves  responsible  for  all  the  conse- 
quences of  the  non-performance.^ 

The  false  and  fraudulent  representations  of  an  agent,  when 
acting  within  the  scope  of  his  authority,  bind  the  principal.' 
A  man  cannot  take  any  benefit  under  false  and  fi-audulent  rep- 
resentation made  by  his  agent,  although  he  may  have  been  no 
party  .to  the  representations,  and  may  not  have  distinctly 
authorized  them.^  *     In  respect  of  the  liability  of  a  principal 

'Central  Railway  Co.  of  Venezuelan.  Riches,    16    C.    B.    104;    Wlicplton  v 

Kisch,  L.  K.  2  App.  Ca.  125.  Ilardisty  8  E.  A  B.  232,  260;    Udell  v 

2  Jli.  117.  Atherton,  7  II.  &  N.  173. 

MVestern  Bank  of  Scotland  V.  Afldie,  "  MeoU's  Case,   3  D.  cfe  J.  387,  437 

L  R   1  ^c.  App.  Ca.  1C3.  per  Turner,  L.  J.;    Udell   ;-.  Atlierton' 

*  Blair   v.   Bromley,  2  Ph.    360,  per  7   II.   &  N.    172,  ;w  Pollnck.  (;.  B.,  <& 

Lord  Cotteiiham.  Wilde,  J. ;    New  Brunswick,   etc.,  Rail- 

<*  Wil.'on  V.  Fuller,  3  Q.  B.  77  ;    Blair  way  Co.  v.  Conylieare,  9  H.  L.  714,  726, 

V.    Bromley,    2  Ph.    350;     Coleman  v.  per  Lord  West'bury,  i6.  739 ;  jwerLord 


*  Elwcll  V.  Chamberlain,  31  K  Y.  Gil;  Mitchell  v.  Mims,  8  Tex.  6- 
Muiulorf  r.  Wickcrshaiii,  (1:!  Penn.  87;.  Bennett  v.  Judson  21  N.  Y.  233- 
Lobdcll  V.  Baker,  1  Met.  193;    Lawrence  v.  Hand,  23  Miss.  103;    Concord 


112 


MISRBPEESENTATIOlif. 


for  the  acts  of  bis  agent,  done  in  tlie  course  of  his  master's 
business,  and  for  bis  master's  benefit,  no  sensible  distinction 
can  be  drawn  between  the  case  of  fraud  and  any  other  wrong.'- 
A  man  cannot  adopt  and  take  the  benefit  of  a  contract 
entered  into  by  his  agent,  and  repudiate  the  fraud  on  which  it 
was  built.  If  the  agent,  at  the  time  of  the  contract,  makes 
any  representation  or  declaration  touching  the  subject-matter, 
it  is  the  representation  and  declaration  of  the  principal.  The 
statements  of  the  agent  which  are  involved  in  the  contract,  as 
its  foundation  or  inducement,  are  in  law  the  statements  of  the 
princii)al.  The  principal  cannot  separate  the  contract  itself 
from  that  by  which  it  was  induced.  lie  must  adopt  the  whole 
contract,  including  the  statements  and  representations  wdiich 
induced  it,  or  must  repudiate  the  contract  altogether.^  It 
would  be  inconsistent  with  natural  justice,  to  permit  a  man  to 
retain  property  acquired  through  the  medium  of  false  repre- 
sentations made  by  his  agent,  although  he  was  no  party  to 
them,   or  did  not  authorize  them.^*      If  an  agent  employs 


Cran worth.  See  Archbold  v.  Lord 
Howth,  L.  R.  Ir.  2  C.  L.  608;  but  see 
Wilde  V.  Gibson,  1  H.  L.  G03.  See, 
however,  Sug.  L.  P.  641 ;  Reynell  v. 
Sprye,  1  D.  M.  &  G.  684,  per  Knight 
Bruce,  L.  J.,  commenting  on  Wilde  v. 
Gibson. 

*  Barwick  v.  English  Joint  Stock 
Bank,  1..  K.  2  Exch.  265.  See  Hern  v. 
Kicliolls,  1  SMlk.  289. 

«  Udell  V.  Atherton,   7   II.  &  N.  184, 


per  Pollock,  C.  B.,  <fe  Wilde,  B. ;  ex-par te 
Ginger,  .5  Ir.  Cb.  174  ;  Barwick  v.  Eng- 
lish Joint  Stock  Bank,  L.  P.  2  Exch. 
265.  See  Archbold  v.  Lord  Howth,  L. 
K.  Ir.  2  C.  L.  608;  comp.  Solomon  v. 
H(mywood,  12  W.  R.  572. 

'  New  Brunswick,  tfec.,  Co.  v.  Cony- 
beare,  9  11.  L.  711 ;  Western  Bank  of 
SeoUaiul  V.  Addie,  L.  R.  1  Sc.  App.  Ca. 
159  ;  Cakes  v.  Turquand,  L.  R.  2  App. 
Ca.  325. 


Bank  v.  Gregg,  14  N.  H.  331 ;  Bowers  ■».  Johnson,  10  Smed.  &  Mar.  1G9; 
Mason  v.  Crosby,  1  Wood  &  Min.  342 ;  Morton  v.  Scull,  23  Ark.  289;  Gris- 
wold  V.  Haven,  25  K  Y.  595.    Graves  v.  Spier,  58  Barb.  349. 

A  representation  by  an  agent  that  a  certain  fact  is  not  known  to  liini, 
is  not  a  denial  of  the  existence  of  the  fact  or  of  the  knowledge  of  Ms 
principal  concerning  it.     Coddington  v  Goddard,  16  Gray,  436. 

*  Fitzsimmons  v.  Joslin,  21  Vt.  129;  Veozie  v.  Wiriams,  8  How.  134; 
Crocker  v.  Lewis,  3  Sumner,  8;  Bowers  v.  Johnson,  10  Smed,  &  Mar.  1G9; 


MISREPRESENTATION.  113 

another  person  to  make  representations,  it  is  the  same  as  if  the 
representations  had  been  made  by  hini.^ 

In  Cornfoot  v.  Fowke,^  a  man  had  employed  an  agent  for 
the  sale  of  property,  who  in  the  course  of  the  treaty  for  sale 
made  material  representations  respecting  the  property,  which 
he  honestly  believed  to  be  true,  though  they  were  false  in  fact 
and  false  to  the  knowledge  of  the  principal;  there  being, 
however,  no  evidence  to  show  a  fraudulent  purpose  on  the 
part  of  the  principal,  it  was  held  that  fraud  and  covin  could 
not  be  pleaded  in  bar  to  an  action  by  him  on  the  contract.  It 
was  admitted,  however,  in  the  judgment  that  if  a  principal 
with  knowledge  of  a  fact  material  to  the  enjoyment  of  prop- 
erty employs  an  agent,  whom  he  knows  to  be  ignorant  of 
that  fact  for  the  purpose  of  concealing  it,  he  could  not 
be  permitted  to  avail  himself  of  that  concealment.  Lord 
Abinger,  C.  B.,  differed  from  the  majority  of  the  court,  being 
of  opinion  that  if  a  principal  employs  an  agent  to  sell  prop- 
erty, and  such  agent  in  the  course  of  his  employment  makes 
false  representations  respecting  the  property,  he  cannot  take 
advantage  of  a  contract  induced  by  such  representations, 
whether  the  agent  was  authorized  by  him  or  not  to  make  the 
representations. 

Cornfoot  V.  Fowke  has  been  the  subject  of  much  comment. 
It  has  been  explained  by  Lord  Cranworth,  in  National  Ex- 
change Company  v.  Drew,^  and  Bartlett  v.  Salmon,*  and  by 
"Willes,  J,,  in  Barwick  v.  English  Joint  Stock  Bank,^  as  hav- 
ing turned  on  a  point  of  pleading.     Lord  St.  Leonards  ac- 


'  Western  Bank  of  Scotland  v.  Addie,  '  2  Macq.  108. 

L.  R.  1  Sc,  Ap.  150.  *  6  D.  iM.  <fe  G.  39. 

«  6  M,  &  W.  358.  *  L.  R.  2  Excb.  2432, 


Hiiut  V.  Moore,  2  Barr,  105  ;  Iluntcr  v.  Hudson  Riv.  Iron  Co.  20  Barb.  493  ; 
Franklin  v.  Elzell,  1  Sneed,  497. 


114  MISREPRESENTATION. 

cepted  die  explanation,  but  apparently  with  reluctance,  in 
National  Exchange  Company  t\  T>rew}  He  stated  it  to  be 
his  opinion  that  the  law  will  reach  the  case  of  a  person  so 
availing  himself  of  the  misrepresentations  of  his  own  agent, 
who  might  be  ignorant  of  a  fact  material  to  the  enjoyment  of 
the  property,  although  the  principal  himself  knew  it,  and  em- 
ployed the  agent  in  order  to  avoid  making  a  direct  representa- 
tion to  the  contrary.  He  said  that  he  would  go  farther,  and 
would  hold  that  although  the  representation  was  not  fraudulent, 
the  ao-ent  not  knowing  it  was  false,  yet  that  as  it  in  fact  was  false, 
and  false  to  the  knowledge  of  the  principal,  although  the  agent 
did  not  know  it,  it  ought  to  vitiate  the  contract.^  So  also  in 
Wheelton  v.  Hardisty,^  Lord  Campbell  said  that  Westminster 
Hall  was  in  favor  of  the  opinion  of  Lord  Abinger.  In  a  care- 
fully considered  American  case,  Fitzsimmons  v.  Joslin,*  Corufoot 
V.  Fowke  was  pronounced  to  be  bad  law.^  The  latest  author- 
ity on  the  subject  is  a  dictum  of  Lord  Kingsdown,  in  Bristow 
V.  Whitmore;^  "If  an  agent,"  he  said,'  "makes  a  contract  on 
behalf  of  his  principal,  whether  with  or  without  authority,  the 
principal  cannot  at  once  approbate  and  reprobate  it.  He  must 
adopt  it  altogether  or  not  at  all.  He  cannot  at  the  same  time 
take  the  benefits  which  it  confers  and  repudiate  the  obligations 
which  it  imposes."^  * 

>  2  Macq.  144.  '  9  H.  L.  418. 

^  lb.  14ij.  *  ^ee  Ex-pnrte  Ginger,  5  Ir.  Cli.  1'74. 

'  8  i:.  <fe  B.  SVO.  See,  also,  Sug.  L.  P.  641 ;    Reynell  v. 

*  21  Verm.  (Amer.)  129.  Sprye,   1   D.   M.    &.  G.  683,  i>er  Knight 

^  ^^ee    Bennett    v.  Judson,   7   Smith       Bmice,  L.  J. ;    but  see  Wilde  v.  Gibson, 

(Amer.)  238.  1  H.  L.  605. 
»  9  II.  L.  418. 


*  Hougli  V.  Richardson,  3  Story,  689;  Henderson  v.  Railroad  Co.  17  Tex. 
560  ;  Crump  v.  U.  S.  Mining  Co.  7  Gratt.  353. 

A  party  can  not  avail  himself  of  an  advantage  that  has  been  obtained 
throu"h  the  misrepresentation  of  a  third  person,  although  such  third  per- 
son is  not  his  agent.  Hunt  v.  Moore,  2  Barr,  103 ;  Fitzsimmons  v.  Joslin, 
21  Vt.  129. 


MISEEPRESEi!JTATION.  115 

A  partnership  firm  is  bound  by  false  and  fraudulent  rep- 
resentations made  by  any  of  its  members  whilst  acting  within 
the  scope  and  limits  of  his  authority  and  having  reference  to 
the  proper  business  of  the  firm,^  but  is  not  bound  by  state- 
ments made  by  him  as  to  his  authority  to  do  that  which 
the  nature  of  the  business  of  the  firm  does  not  impliedly 
warrant.^ 

A  company  or  corporation  is  as  much  bound  by  the  false 
and  fraudident  rej)resentations  of  its  authorized  agents  as  an 
individual.  If  the  directors  of  a  company  in  the  course  of 
managing  its  affairs,  or  in  the  course  of  the  business  which  it 
is  their  duty  to  transact  induce  a  man  by  false  or  fraudulent 
misrepresentations  to  enter  into  a  contract  for  the  benefit  of 
the  company,  the  company  is  bound,  and  can  no  more  re- 
pudiate the  fraudulent  conduct  of  its  agents  than  an  individual 
can.^  *  A  company  cannot  retain  any  benefit  which  it  may 
have  obtained  through  the  fraudulent  representations  of  its 

'  Rapp  V.  Latham,  2  B.  <fe  Aid.  795;  5  H.  L.  86  ;    Xational  Exchange  Co.  v. 

Lovell   V.  Hicks,  2  Y.   <fe  C.  46,  481;  Dicw,    2  Macq    125,   per   Lord   Craa- 

Blair  v  Bromley,  5  Ha.  557,  2  Ph.  354;  worth;    Mfiix  Executors'  Case,  2  I».  M. 

Wickham  v.  Wickham,  2  K.  &  J.  478.  &  G.  522 ;  NicoU's  Case,  3  I>.  &  J.  387. 

*  Ex-iiiirte  Agace,  2  Cox,  312.  437  ;  y^e^y  Brunswick,  <fcc..  Railway  Co. 

Miurnes    ?\*l'en'nell,  2    H.  L.   497;  v.  Conybeare,   9  H.  L.  737,  per  Lord 

Ranger  v.  Great  We^tera  Railway  Co.  Cranworth. 


*  Henderson  v.  Railroad  Co.  17  Tex.  560 ;  Litchfield  Bauk  r.  Peck,  29 
Ct.  384 ;  Crump  v.  U.  S.  Mining  Co.  7  Gratt.  353 ;  East  Tenn.  R.  R.  Co.  v. 
Gammon,  5  Sneed,  oG7 ;  Hester  v.  Mempliis,  &c.,  R.  R.  Co.  32  Miss.  378; 
River  v.  Plankroad  Co.  30  Ala.  92;  New  Orleans,  &c.,  R.  R.  Co.  v.  Wil- 
liams, 16  La.  Ann.  315. 

Where  representations  made  by  an  agent  to  obtain  subscriptions  are  a 
part  of  a  scheme  of  fraud  participated  in  by  the  officers  authorized  to 
manage  its  affairs;  or  where  they  are  such  as  the  agent  may  reasonably  be 
presumed  by  the  subscri!)er  to  have  the  authority  of  the  corporation  to 
make,  his  represL'utations  are  relevant  to  show  the  fraud  by  means  of 
which  the  subscription  was  procured.  But  where  there  is  no  rer.sonaljle 
presumption  of  authority,  and  no  actual  authority,  the  corporation  will  not 
be  prejudiced  by  the  unauthorized  acts  of  the  agent.  Custar  v.  Tiiusvillo 
Water  6c  Gas  Co.  03  Penn.  381. 


116  MISEEPEESENTATION. 

agents,  but  is  responsible  to  the  extent  to  wbicb  it  may  have 
prolited  from  such  representations.* 

The  rule  that  a  company  cannot  retain  any  benefit  which  it 
may  have  obtained  through  the  false  and  fraudulent  represen- 
tations  of  its  agents,  applies  to  the  case  of  a  member  of  the 
company,  who  was  induced  by  such  representations  to  take 
additional  shares.^ 

A  principal,  however,  is  not  bound  by  the  false  and  fraud- 
ulent representations  of  his  agent,  unless  the  agent  be  acting 
within  the  scope  of  his  authority.^  A  joint-stock  company, 
for  instance,  is  not  bound  by  the  statements  of  one  of  its  mem- 
bers, unless  he  is  also  the  agent  of  the  company,  and  unless 
his  business  be  to  make  statements  on  its  behalf.*  Kor  is  a 
company  bound  by  the  statements  of  one  of  the  directors,  or 
of  its  manager,  or  secretary,  or  of  a  clerk,  if  he  is  not  singly 
an  agent  of  the  company .^  The  rule  that  companies  are  bound 
by  the  misrepresentations  of  the  directors  applies  only  to  the 
case  of  directors  acting  as  a  body.^ 

Referees  for  information  respecting  a  life  to  be  assured  are 
not  thereby  constituted  the  agents  of  the  insured.  If  their 
information  is  false  and  fi-audulent,  but  not  to  the  knowledge 
of  the  assured,  the  insurer  is  not  entitled  to  avoid  the  policy 
on  the  ground  that  it  was  induced  by  the  fraud  of  the  agent 
of  the  insured.' 


>  Western  Bank  of  Scotland  v.  Addie,  Railway  Co.  v.  Conybeare,  9  H.  L.711. 

L.  R.  1   Sc.   App.  Ca.    157;    Oakes  v.  See  Barry  v.  Crosskey,  2  J.  <fe  H.  27. 

Turqiiand,  L.  11.  2  App.  Ca.  325  ;    lien-  *  Bunies  v.  Pennell,  2  II.  L.  497. 

derson  i'.  Lncon,  L.  R.  5  Eq  261.     See  ^  PIoK's  Case,   22  Beav.  48;    Ayre'a 

Barrv  v  Crosskey,  2  J.  <fe  H.  1.  Case.  25  Beav.  513 ;    Gibson's  Case,  2 

'  Western  Bank  of  Scotland  v.  Addle,  D.   <fe  J.  275 ;    NieoU's  Case,  3  D.  <fe  J. 

L  R.  1  Sc.  App.  Ca.  163.  387;  Ex-parie  Frowd,  30  L.  J.  Ch.  822; 

'  Bernard's  Case,  5  Deg.  &  S.   283;  WolListoii's  Case,  4  D.  <fe  J.  437. 

Ayres  Case,  25  Beav.  513;    Burnes  v.  "  Nicoll's  Case,  3  D.  &  J.  387,  440. 

Pennell,  2  II.  L.  497 ;    Nicoll's  Case,  3  See  National  Exchange  Co.  v.  Drew,  24 

D   <fe  J.'387,  437  ;  Wollastou's  Case,  4  Dec.  of  Court  of  Session,  2d  series,  p.  1. 

d!  &  J.  437;    Att.-Gen.  v.  Briggs,  1  '  Wheeltoa  v.  Hardisty,  8  E.   «&  B. . 

Jiir.  N.  S.  10^4;  New  Brunswick,  Ac,  232. 


MISREPRESENTATION.  117 

An  agent  whose  authority  is  unknown  cannot  bind  his 
principal  by  misrepresenting  the  authority  conferred.^ 

Although  a  principal  is  not  bound  by  the  statements  of  an 
agent  when  not  acting  within  the  scope  of  his  authority,  the 
case  is  different  if  a  principal  knows  that  a  man  is  dealing  with 
his  agent  under  the  belief  that  all  statements  made  by  the 
agent  are  warranted  by  the  principal,  and  so  knowing,  allows 
him  to  expend  moneys  in  that  behalf.  A  court  of  equity  will 
not  afterwards  allow  the  principal  to  set  up  the  want  of  author- 
ity of  the  agent.  The  knowledge  must,  however,  be  brought 
home  to  the  principal.^ 

In  Brockwell's  Case,^  Kindersley,  Y.-C,  held  that  if  the 
directors  of  a  company  in  the  exercise  of  their  ordinary  func- 
tions make  a  false  report  to  the  company,  who  adopt  it,  and 
the  report  finds  its  way  into  the  hands  of  a  man  who  takes 
shares  on  the  faitli  of  it,  he  could  not  he  held  liable.*  The 
authority  of  the  case  has  been,  on  two  occasions,^  questioned 
by  Lord  Chelmsford.®  He  has  expressed  himself  as  of  opinion 
that  a  company  is  not  bound  by  false  statements  contained  in 
reports  of  the  directors  of  the  company,  which  have  been 
adopted  at  a  general  meeting  but  do  not  affect  to  give  any 
more  knowledge  than  what  was  contained  in  the  directors' 
report ;  and  which,  although  they  have  been  published  and 
have  got  into  the  hands  of  the  public,  have  not  been  indus- 
triously circulated  by  the  company.  The  distinction,  however, 
suggested  and  taken  by  his  Lordship  does  not  seem  sound  law. 
In  two  late  cases,'  Kindersley,  Y.-C,  said  that  he  adhered  to 
the  opinion  he  had  expressed  in  Brockwell's  Case ;  and  the 
weight  of  authoi-ities  is  in  favor  of  the  opinion  of  his  Honor.^ 

'  story  on  Agency.  Brunswick,  &c.,  Railway  Co.  v.  Cony- 

*  Riimsden  v.   Dyson,  L.   R.   1  App.       beaie,  9  H.  L.  749. 

Ca.  129,  per  Lord  Cran worth.  *  See,  also.  Mixer's  Case,4  D.  &  J.  583. 

'  4  Drew,  205.  '  Worth's  Case,  4  Drew,  5;52  ;    Bari 

*  See  National  Exchange  Co.  i).  Drew,  rett's  Case,  2  Dr.  &  Sm.  415,  5  N.  R. 
2  Macq  103.  460. 

*  JS'icoll's  Case,  3  D.  «fe  J.  427 ;   New  *  See  National  Exchange  Co.  v.  Drew, 


118  MISREPRESENTATION. 

The  general  interests  of  society  demand  that,  as  between  an 
innocent  company  on  the  one  hand  and  an  innocent  individual 
defrauded  by  the  company  on  tlie  other,  misrepresentations  by 
the  directors  of  a  company  shall  bind  the  company,  although 
the  shareholders  may  be  ignorant  of  the  representations  and  of 
their  ftilsehood.^  It  may  be  said  that  the  reports  of  directors 
are  not  made  hy  the  company,  but  to  the  company  ;  but  the 
argument  though  plausible  is  not  sound.  The  reports  of 
directors  though  addressed  to  the  shareholders  are  made  under 
such  circumstances  that  what  they  so  report  is  known,  and  in- 
tended to  be  known,  not  only  to  the  shareholders,  but  to  all 
persons  who  may  be  minded  to  be  shareholders  just  the  same 
as  if  they  were  published  to  the  world  :  and  the  exigencies  of 
mankind  require  that  reports  so  made  and  circulated  should 
be  deemed  to  be  the  reports  of  the  company.^  The  case  be- 
comes all  the  stronger,  if  the  reports  of  directors  have  been 
adopted  at  a  general  meeting  of  the  shareholders.  After 
adoption  a  report  is  the  act  of  the  company  and  not  simply  of 
the  directors.^  If  after  adoption  a  report  is  industriously  cir- 
culated, misstatements  contained  in  it  must  be  taken  to  be 
made  with  the  authority  of  tlie  company.* 

The  principle  which  treats  non-disclosure  as  equivalent  to 
fraud,  when  the  circumstances  impose  a  duty  that  disclosure 
should  be  made,  obtains  specially  in  respect  to  policies  of 
assurance.  The  contract  of  assurance  being  essentially  a  con- 
tract of  good  faith,  inasmuch  as  the  risk  which  the  insurer  un- 
dertakes can  only  be  learnt  from  the  representations  of  the 
party  proposing  the  insurance,  courts  of  justice  proceed  upon 
a  doctrine  strictly  analogous  to  that  of  the  Roman  law,  and 

125,  per  Lord  Cran worth,  ?'6.  143,  per  *  National  Exchange  Co.  v.  Drew,  2 

Lord  St.  Leonards;    Nicoll's  Case,  3  D.       Macq.  Vlo, per  Lord  Cranworth. 
&  J.  387,  per  Turner,  L.  J.  ^  lb.  143,  per  Lord  St.  Leonards. 

'  National  Exchange  Co.  v.  Drew,  2  *  New   Brunswiclf,    &c..   Railway  v. 

Macq.  125.  Conybeare,  9  H.  L.  711.     ISee  Earrett'a 

Case,  2  Dr.  &  Sm.  415. 


MISREPRESENTATION.  119 

regard  non- disclosure  as  fatal  to  the  validity  of  the  transac- 
tion.^ * 

The  rule  with  respect  to  the  duty  of  disclosure  applies  with 
peculiar  force  in  the  case  of  policies  of  marine  insurance. 
The  validity  of  a  contract  of  marine  insurance  being  condi- 
tional upon  the  completeness,  the  tnith,  and  the  accuracy  of 
the  representations  of  the  party  proposing  the  insurance  as  to 
the  risk,  he  is  bound  to  make  known  to  the  underwriter  every- 
thing within  his  knowledge  which  is  of  a  nature  to  increase 
the  risk  which  he  is  asked  to  undertake.  There  are  many 
matters  as  to  which  he  may  be  innocently  silent.  He  is  not 
bound  to  mention  facts  and  circumstances  which  are  within 
the  ordinary  professional  knowledge  of  an  underwriter :  nor 
is  he  bound  to  communicate  things  which  are  well  known  to 
both  parties,  or  which  he  is  warranted  in  assuming  to  be 
within  the  knowledge  of  the  party  who  is  asked  to  undertake 
the  risk  ;  as,  for  instance,  where  a  fact  is  one  of  public  noto- 
riet}',  as  of  war,  or  where  it  is  a  matter  of  inference  and  the 
materials  for  forming  a  judgment  are  common  to  both  parties. 
But  he  is  bound  to  communicate  every  fact  which  he  is  not 
entitled  to  assume  to  be  in  the  knowledge  of  the  underwriter. 
He  may  not,  however,  speculate  as  to  what  may  or  may  not  be 
in  the  mind  of  the  underwriter,  or  as  to  what  may  or  may  not 
be  brought  to  his  mind  by  the  particulars  disclosed  to  him. 
It  is  not  enough  that  the  underwriter  be  furnished  with  mate- 
rials from  which  he  may,  by  a  course  of  reasoning  and  effort 
of  memory,  see  the  extent  of  the  risk.     The  matter  must  not 

^Carter    v.   Boehm,   3   Burr.    190.5;  Lindenau  v.  Desborougli,  8  B.  d:  C.  686. 


*  Clark  V.  Man.  Ins.  Co.  8  How.  235 ;  Fletcher  v.  Commonwealth  Ins. 
Co.  18  Pick.  419  ;  Walden  v.  Louisiana  Ins.  Co.  12  La.  134  ;  N.  Y.  Bowery 
Ins.  Co  V.  N.  Y.  Ins.  Co.  17  Wend.  3.5S). 


120  MISREPRESENTATION. 

be  left  to  speculation  or  perad venture.  If  the  particulars  fur- 
nished to  the  underwriter  fall  short  of  what  the  partj  propos- 
ing the  insurance  is  bound  to  communicate,  the  contract  is 
vitiated.  It  is  immaterial  whether  the  omission  to  communi- 
cate a  material  fact  has  arisen  from  intention,  or  indiiFerence, 
or  mistake,  or  from  it  not  being  present  to  the  mind  of  the 
party  proj)osiiig  the  insurance  that  the  fact  was  one  which 
ought  to  have  been  disclosed.^  The  insurer  is  bound  to  com- 
municate not  only  every  material  fact  of  which  he  has  actual 
knowledge,  but  every  material  fact  of  which  he  ought  in  the 
ordinary  course  of  business  to  have  knowledge,  and  must  take 
all  necessary  measures  by  the  employment  of  competent  and 
honest  agents  to  obtain  through  the  ordinary  channels  of  intel- 
ligence in  use  in  the  mercantile  world  all  due  information  as  to 
the  subject-matter  of  the  insurance.  If  by  the  fraud  or  negli- 
gence of  his  agent  the  party  proposing  the  insurance  is  kept  in 
ignorance  of  a  fact  material  to  the  risk,  and  through  such  neg- 
ligence fails  to  disclose  it,  the  contract  is  vitiated.'^  An  under- 
writer may,  however,  in  any  particular  case  limit  the  right  of 
full  disclosure  wliich  he  has  by  law  to  that  of  being  informed 
of  what  is  in  the  knowledge  of  the  party  proposing  the  insur- 
ance, not  only  as  to  its  existence  in  point  of  fact,  but  also  to  its 
materiality.^ 

It  was  formerly  considered  that  policies  of  assurance  on 
lives,  like  policies  of  insurance  on  ships,  were  made  condition- 
ally upon  the  truth  or  completeness  of  the  representations 
respecting  the  risk,  and  that  misrepresentation  or  concealment 
of  a  material  fact,  although  not  fraudulent,  vitiated  the  policy.* 
But  it  is  now  determined  that  such  is  not  the  case.  The  assured 
is  always  bound  not  only  to  make  a  true  answer  to  the  ques- 

'  Carter    v.   Boehm,   5   Burr.    1905;  ^  Jones  i>.  Provincial  Insurance  Co.  3 

Bates  V.  Hewitt,  L.  R.  2  Q.  B.  595,  605,  C.  B.  K  S.  8fi. 

606,  010.  "  Lindenau  v.  Desborough,  8  B.  &  C. 

^  Proudfoot  V.  Montefiore,  L.  R.  2  Q.  586 ;  Jones  v.  Provincial  lusurance  Co, 

B.  511.  3  C.  B.  N.  S.  86. 


MISREPRESENTATION.  121 

tions  put  to  him,  but  to  disclose  spontaneously  any  fact  exclu- 
sively within  his  knowledge,  which  it  is  material  for  the 
insurer  to  know.  But  it  is  not  an  implied  condition  of  the 
validity  of  the  policy  that  the  insured  should  make  a  complete 
and  true  representation  respecting  the  life  proposed  for  insur- 
ance. Such  condition,  if  intended,  must  be  made  a  matter  for 
express  stipulation.  If  there  be  no  warranty  or  condition  on 
the  part  of  the  party  proposing  the  insurance,  the  insurer  is 
subject  to  all  risks,  unless  he  can  show  a  fraudulent  conceal- 
ment or  misrepresentation,  or  a  non-communication  of  mate- 
rial facts  known  to  the  assured.^  It  is.  however,  an  implied 
condition  that  the  person  whose  life  is  assured  is  alive  at  the 
time  of  making  the  policy.  The  policy  is  void  if  the  persoa 
whose  life  is  assured  was  dead  at  the  date  of  the  policy,  though 
neither  party  to  tlie  policy  was  aware  of  his  death.^  If  there 
is  a  proviso  that  the  policy  shall  not  be  disputed  on  the  ground 
of  merely  untrue  statements,  not  fraudulently  made,  a  misrep- 
resentation or  concealment  undesignedly  made  does  not  avoid 
the  policy.'  An  insurer  may  limit  his  right  to  that  of  being 
informed  of  what  is  in  the  knowledge  of  the  party  proposing 
the  insurance,  not  only  as  to  its  existence  in  point  of  fact,  but 
also  as  to  its  materiality.^ 

Policies  of  insurance  against  fire  are  made  upon  the  im- 
plied condition  that  the  description  of  the  property  inserted  in 
the  policy  is  true  at  the  time  of  making  the  policy;^  and  there 
is  an  implied  condition  that  the  property  shall  not  be  altered 
during  the  term  for  which  it  is  insured,  so  as  to  increase  the 
risk.^     In  efiecting  an  insurance  against  fire,  it  is  the  duty  of 


'  Wbeclton  v.  Hardisty,  8  E.  <fe  B.  v.    Scottish  Equitable  Life   Assurance 

232.  Co.   2  U.  &  N.  19;    Wheelton  v.  Har- 

^  Pritchard  v.  Merchants'  Life  Assur-  disty,  8  E.  &  B.  232. 
ance  Society,  3  C.  B.  N.  S.  C22.  *  Jones  v.  rrovincial  Insurance  Co.  ^ 

^  Fowkes  V.  Manchester  and  London  C.  B.  N.  S.  80. 
Life  Assurance  Co.  3  B.  &  S.  91'7.     See  *  Sillem  ?;.  Thornton,  3  E.  &  B.  868. 

Wood  V.  Dwarris,  11  Exch.  493  ;    Reis  "  lb.;  Stokes  v.  Cox,  1  H.  it  N.  533. 

9 


122  MISEEPEESENTATIOK. 

the  party  proposing  the  insurance  to  communicate  to  the 
insurer  all  material  facts  within  his  knowledge  touching  the 
property.^  But  the  insurer  may  limit  his  right  to  that  of 
being  informed  of  what  is  in  the  knowledge  of  the  party  pro- 
posing the  insurance,  not  only  as  to  its  existence  in  point  of 
fact,  but  also  as  to  its  materiality.^ 

The  strict  rule  with  respect  to  non-disclosure,  which  ob- 
tains in  the  case  of  policies  of  insurance,  does  not  extend  to 
contracts  of  suretyship  or  guarantee.^  If  the  creditor  be  spe- 
cially communicated  with  on  the  subject,  he  is  bound  to  make 
a  full,  fair,  and  honest  communication  of  every  circumstance 
within  his  knowledge,  calculated  in  any  way  to  influence  the 
discretion  of  the  surety,  on  entering  into  the  required  obliga- 
tion.* But  he  is  not  under  any  duty  to  disclose  to  the  intended 
surety  voluntarily  and  without  being  asked  to  do  so,  any  cir- 
cumstances unconnected  with  the  particular  transaction  in 
which  he  is  about  to  engage,  which  will  render  his  position 
more  hazardous,  or  to  inform  him  of  any  matter  afiecting  the 
general  credit  of  the  debtor,  or  to  call  his  attention  to  the 
transaction,  unless  there  be  something  in  it  which  might  not 
naturally  be  expected  to  take  place  between  the  parties.®  If 
the  intended  surety  desires  to  know  any  particular  matter  of 
which  the  creditor  may  be  informed,  he  must  make  it  the  sub- 
ject of  a  distinct  inquiry."  But  if  there  be  anything  in  the 
transaction  that  might  not  naturally  be  expected  to  take  place 
between  the  parties  concerned  in  it,  the  knowledge  of  which  it 

'  Lindenau  v.  DesLorough,  8  B.  &  C.  598.     See  Smith  v.  Bank  of  Scotland,  1 

592 ;  Bule  v.  Turner,  6  Taunt.  338.  Dow,  272. 

'  Jones  V.  Provincial  Insurance  Co.  3  *  Hamilton  v.  TVatson,  12  CI  &  Fin. 

C.  B.  N.  S.  86.  119;    t^niiiU   v.   Currie,   2  Drew.   102; 

'  North     British    Insurance    Co.    v.  Wythes  r.  Laboucbere,  3  D.  (fe  J.  593, 

Lloyd,   10  Exch.  523 ;    Wythes  v.  La-  609.     See  Greenfield  v.  EdwarJs,  2  D. 

bouchere,  3  D.  <fe  J.  609;    Lee  v.  Jones,  J.  &  S.  582. 

11  C.  B.  N.  S.  482.     See  Greenfield  v.  "  Ilainilton  v.   Watson,    12    C.  L.   <fe 

Edwards,  2  D.  J.  <fe  S.  582.  Fin.  109  ;    Wythes  v.  Laboucbere,  3  D. 

*  Owen  V.  Hoiuan,  3  ilac.  &  G.  378 ;  &  J.  009.     See  Greenfield  v.  Edwards, 

Blest    V.    iJrown,    8   Jur.   N.    S.    602;  2  D.  J.  <fc  S.  582, 
Greenfield  v.  Edwards,  2  D.  J.  AS.  582, 


miseepeese:station.  123 

is  reasonable  to  infer  would  have  prevented  the  surety  from 
entering  into  the  transaction,  the  creditor  is  under  an  obliga- 
tion to  make  the  disclosure.^  If,  for  instance,  there  be  any 
private  arrangement,  or  secret  miderstanding,  between  the 
creditor  and  the  debtor  connected  with  the  particular  transac- 
tion, in  which  he  is  about  to  engage,  whereby  the  risk  of  the 
surety  is  increased,^  or  his  position  is  so  materially  varied,  that 
he  is  not  in  the  position,  in  which  he  might  reasonably  have 
contemplated  to  be ;  ^  or  if  a  party  having  reason  to  suspect 
the  fidelity  of  his  clerk  requires  security  in  such  a  way  as  to 
hold  him  out  as  one  whom  he  considers  a  trustworthy  per- 
son,* *  or  if  the  creditor  has  notice  that  the  circumstances  un- 
der which  the  debtor  has  obtained  the  concurrence  of  the 
surety  lead  to  the  suspicion  of  fraud  ;^  concealment  is  fraudu- 
lent and  will  vitiate  the  transaction.^  "  It  must  in  every  case," 
said  Blackburn,  J.,  in  Lee  v.  Jones,'  "  depend  on  the  nature  of 

»  Hamilton  v.  Watson,  12  CI.  &  Fin.  8  D.  M.  &  G   100;  Spaight  v.  Cowne,  1 

109,  110  ;    Lee  v.  Jones,  17  C.  B.  N.  S.  H.  &  M.  359. 

503;    Burke  v.  Rogerson,  12  Jur.  N.  S.  ■"  t>mitli  v.  Bank  of  Scotland,  1  Dow, 

635.     See   Squire   r.  Whitton,   1    II.  L.  272. 

333 ;  Greenfield  v.  Edwards,  2  D.  J.  &  "  Owen  v.  Homan,  4  II.  L.  997  ;    Lee 

S.   582;    Rhodes  r.   Bate,   L.  li,  1  Ch.  v.   Jones,   17  C.  B.  N.  503;    Rhodes  v. 

App.   252;     Barwick  v.   English  Joint  Bate,  L.  R.  1  Ch.  Ap.  252.     See  Guar- 

Stock  Bank,  2  L.  R.  Exch.  2r>9.  dians  of  Stokesley  Union  v.  Strother, 

'  Pidcock  V.  Bishop,  3  B.  <fe  C.  605.  \  See  Squire  v.  Whitton,  1  H.  L.  333. 

»  Evans  v.  Bremridge,  2  K.  <fe  J.  174 ;  '  17  C.  B.  N.  S.  606. 


*  A  person  can  not  be  considered  as  guilty  of  fraud  in  law  by  omitting 
to  make  known  facts  of  an  important  character  affecting  the  risk  of  the 
surety  when  it  does  not  appear  that  he  had  an  opportunity  to  do  so.  On 
the  contrary,  when  he  does  know  such  facts,  and  has  reason  to  believe  that 
they  arc  not  known  to  the  proposed  surety,  if  information  be  sought  from 
him,  or  if  he  have  a  sui  able  opportunity,  and  the  facts  are  of  such  a  char- 
acter that  they  are  not  found  in  tlie  uaual  course  of  that  kind  of  business, 
and  are  such  as  materially  to  increase  the  risk,  it  is  his  duty  to  make  them 
known.  To  receive  a  surety  known  to  be  acting  upon  the  belief  that  there 
are  no  unusual  circumstances  by  which  hi-!  risk  will  be  materially  increased, 
well  knowing  that  there  are  such  circumstances,  and  having  reasonable 
opportunity  to  make  them  known,  is  a  legal  fraud  i)y  which  the  surety 
will  be  relieved  from  the  contract.  Franklin  Bank  v.  Cooper,  36  Me.  179 ; 
s.  c.  37  Me.  543. 


124  miseepkese:j:tatiok. 

the  transaction,  whether  the  fact  not  disclosed  is  such  that  it 
is  impliedly  represented  not  to  exist,  and  that  fact  must  be 
generally  a  question  of  fact  for  the  jury." 

In  order  that  a  compromise  may  be  supported  in  equity, 
it  is  essential  that  the  parties  should  have  acted  with  equal 
knowledge,  or  at  least  equal  means  of  knowledge  in  the  mat- 
ter. If  one  of  the  parties  has  knowledge  of  a  material  tact, 
which  he  withholds  from  the  others,  and  which  they  have  not 
reasonable  means  of  knowing,  the  transaction  cannot  stand. 
A  compromise  cannot  be  approved  of  where  one  party  knows 
only  so  much  of  his  rights  as  the  opposite  party  chooses  to 
apprise  him  of.  To  constitute  a  fair  compromise  of  a  doubtful 
right,  the  facts  creating  the  doubt  should  be  equally  known 
by  all  the  parties.  There  must  be  a  full  and  fair  communica- 
tion of  all  material  circumstances  affecting  the  question,  which 
forms  the  subject-matter  of  the  agreement,  which  are  within 
the  knowledge  of  the  several  parties,  and  which  the  others 
have  not  reasonable  means  of  knowing,  whether  such  informa- 
tion be  asked  for  by  them  or  not.  There  must  not  only  be 
good  faith  and  honest  intention,  but  full  disclosure,  and  with- 
out full  disclosure  honest  intention  is  not  sufficient.*  A  party 
to  a  compromise  who  has  knowledge  of  a  fact,  must  not  take 
upon  himself  to  decide  that  the  suppressed  fact  is  immaterial, 
if  it  could  by  any  possibility  have  had  any  influence  on  the 
decision  of  the  other  party .^     If  the  compromise  is  a  transac- 

'  Gibbons  v.  Caunt,  4  Ves.  840 ;  Wal-       don,  ih.  471 ;  Leonard -y.  Leonard,  2  B.  dt 
keru.  Symonds,  3  Sw.  1 ;  Gordon  v.  Gor-      B.  180 ;  Hotclikiss  v.  Dickson,  2  Bligh, 


*  Trigg  V.  Read,  5  Humph.  529  ;  Carr  v.  Callaghan,  3  Litt.  365. 

Concealment  will  not  invalidate  a  compromise  unless  a  loss  lias  been 
occasioned  thereby.     Currie  v.  Steele,  2  Sandf.  542. 

A  compromise  with  knowledge  of  all  the  fiicts  is  valid  although  the 
adverse  party  has  expressed  an  unfounded  opinion  upon  his  rights.  Blake 
v.  Pick,  11  Vt.  483 ;  Saltonstall  v.  Gordon,  33  Ala.  49 ;  Birdsong  v.  Bii-d- 
song,  2  Head.  289. 


MISREPRESENTATION.  125 

tion  in  the  nature  of  a  family  arrangement,  or  if,  under  the 
circumstances  of  the  case,  it  was  the  duty  of  the  one  party  to 
see  that  the  nature  of  the  transaction  was  fully  explained  to 
the  other,  these  principles  apply  with  peculiar  force.^  But  if 
the  parties  to  a  family  arrangement  are  not  on  good  terms,  and 
are  really  at  arms'  length,  the  ordinary  rules  as  to  disclosure  in 
family  arrangements  have  no  place.^ 

The  rule  with  respect  to  compromises,  which  applies  be- 
tween private  individuals,  is  not  less  applicable  to  compro- 
mises by  the  courts  on  behalf  of  infants.  The  orders  of  the 
court  cannot  be  set  aside  on  grounds  less  strong  than  those 
which  would  be  required  to  set  aside  transactions  between 
competent  parties.^ 

•  The  most  comprehensive  class  of  cases  in  which  equitable 
relief  is  sought  on  the  ground  of  concealment,  is  in  the  case  of 
transactions  between  persons  standing  in  a  fiduciary  relation 
to  each  other.  In  all  such  cases  the  party  who  fills  the  posi- 
tion of  active  confidence,  is  under  an  equitable  obligation  to 
disclose  to  the  party  towards  whom  he  stands  in  such  relation, 
every  material  fact  which  he  himself  knows  calculated  to  influ- 
ence his  conduct  on  entering  into  the  transaction.  The  sup- 
pression of  any  material  fact  renders  the  transaction  impeach- 
able in  equity.*      This   subject  will  come  into   review   in   a 


348;    Stewart  v,  Stewart,  6  CI.  &  Fin.  Cooke,  4  Russ.  58;  Pickering  v.  Pieker- 

911;    Harvey   ■».    Coke,   4    Kuss.   34,  ing,   2  Beav.  56,  3  Jur.  743;    Smitii  v. 

Pickering   v.    Pickering,    2    Boav.    56;  Pinconibe,    3  Mao.   <feG.  653;    Davis;;. 

Sc  itt  V.  Scott,  11  Ir.  Eq.  75;    Goymoiir  Chanter,   3  W.  R.   321  ;    Greenwood  v. 

V.  Pigge,  13  L.  J.  rh.  322;    Bainbri:;ge  Greenwood,  2  D.J.  &  S.  28.     See  Breut 

V.  Moss.  3  Jur.  N.  S.  58 ;  Davis  v.  Chan-  v.  Brent,  10  L  J.  Ch.  84. 

ter,  3  W.  R.  321 ;  Greenwood  v.  Green-  °  Irvine   v.   Kirkpatrick,   7  Bell's  Sc. 

wood,  2  D.  J.  <fe  S.  2S ;  Brooke  r.  Lord  App.  I'a.  180,  209. 

Mostvn.  ib.  373.     See  Lloyd  ii.  Passing-  ^  Hrooke  v.   Lord  Mostvn,  2  D.  J.  <fe 

liam,'Coop.  152;  M'Kelhir?.'.  \Vallacc\8  S.  416. 

Moo.  P.  C.  378 ;    Triage  v.  Lavalit'e,  15  *  Walker  v.  Symonds,  3  Sw.  1 ;  Wood 

Moo.   P.  C.   270;    Cooke  v.  Greves,  30  v.   Downes,    18   Ves.    120;    Bulidey  v. 

Beav.  378.  Wiif.rd,    2    CI.    &   Fin.    1(12,177-181; 

'Dunnage    v.    White,     1    Sw.    137;  iladdeford    v.    Austwick,    1    Sim.    80; 

Gordon  v.  Gordon,  3  Sw.  400;   Leonard  Lloyd  v.  Attwood,  3  D.  <fe  J.  014 ;  Toin- 

V.  Leonard,  2  B.  <fe  B.  18U;  Harvey  v.  sonV  Judge,  3  Drew.  306, 


126  MISKEPRESENTATIOlir. 

subsequent  page,  where  the  peculiar  equities  between  persons 
standing  in  these  predicaments  come  into  consideration. 

The  principle  of  law,  that  a  man  who  makes  a  representa- 
tion to  another  in  such  a  way,  or  under  such  circumstances,  as 
to  induce  him  to  believe  that  it  is  meant  to  be  acted  on,  is 
liable  as  for  a  fraud,  in  the  event  of  the  representation  proving 
to  be  false,  and  damage  thereby  accruing  to  the  party  to  whom 
it  was  made,  though  common  to  both  law  and  equity,^  is  not 
so  general  in  its  application  at  law  as  in  equity.  It  is  not 
necessarj',  nor,  perhaps,  would  it  be  easy  to  define  the  limits  of 
its  application  at  law,  but  in  equity  the  principle  is  of  very 
general  application,  and  is  the  foundation  of  a  very  compre- 
hensive and  most  salutary  part  of  the  jurisdiction.  A  man 
who  has  so  conducted  himself  as  to  cause  a  reasonable  man.  to 
believe  in  the  existence  of  a  particular  fact,  or  state  of  facts, 
or  things,  and  to  believe  that  the  representation,  as  conveyed 
to  his  mind,  was  meant  to  be  acted  on,  will  not  be  permitted 
by  a  court  of  equity  to  derogate  from  interests  which  have 
been  created,  or  rights  which  have  been  acquired  on  the  faith 
of  the  existence  of  such  a  fact,  or  state  of  facts  or  things,  by 
showing  that  the  fact,  or  state  of  facts  or  things,  was  not  such 
as  he  represented  it  to  be,  or  by  determining  the  actual  state 
of  thino-s  which  he  has  so  held  forth  as  the  consideration  for 
the  change  of  his  condition  by  the  other,  or  to  enforce  his 
leo-al  right,  if  any,  against  him,  unless  the  latter  has  received 
the  benefit  which  he  contemplated  at  the  time  he  was  induced 
to  alter  his  condition.^  * 


'  Supra,  p.  53.  609  ;  riscott  v.  Ptratton,  John.  369, 1  D. 

'  W  e.t  V.  Jones,  1   Sim.  K  S.   207 ;  F.  <k  J.  49;  Cooper  v.  Joel,  1  D.  F.  <fe  J. 

M:ijor  V.  Major,  1  Drew.  165  ;  Somerset-  240;    Dendy  v.  Cary,  9  Jur.  N.  S.  845  . 

shire  Canal  Co.  v.  Ilarcourt,  2  D.  <fe  J.  Youmans  v.  Williams,  L.  R.  1  Eq.  185,' 


*  If  a  party  so  conducts  himself  as  -wittingly  and  -willingly  to  lead 
another  isto  the  belief  of  a  fact  -nhereby  he  -would  be  injured  if  the  fact 


MISREPIIESENTATI02T.  127 

Tlie  principle  is  not  limited  to  cases  where  a  distinct  repre- 
sentation has  been  made,  but  applies  equally  to  cases  where  a 
man,  by  his  silence,  produces  a  false  impression  on  the  mind  of 
another.^  If  a  man  has  been  silent,  when  in  conscience  he 
ought  to  have  spoken,  he  is  debarred  in  equity  from  speaking 
when  conscience  requires  him  to  be  silent,^  If  a  party  has  an 
interest  to  prevent  an  act  being  done,  and  he  acquiesces  in  it 
60  as  to  induce  a  reasonable  belief  that  he  consents  to  it,  and 
the  position  of  others  is  altered  by  their  giving  credit  to  his 
sincerity,  he  has  no  more  right  to  challenge  the  acts  to  their 
prejudice,  than  he  would  have,  had  it  been  done  by  his  pre- 
vious license.^  Parties  who  stand  by  without  asserting  their 
rights,  and  allow  others  to  incur  liabilities  which  they  might 
not  have  incurred  if  those  rights  had  been  asserted,  cannot 
set  up  those  rights  in  a  court  of  equity  as  against  those  by 
whom  such  liabilities  have  been  incurred/  "When,  for  in- 
stancy, a  man  builds  or  lays  out  moneys  upon  land,  supposing 
it  to  be  his  own,  and  believing  he  has  a  good  title,  and  the 
real  owner,  perceiving  his  mistake,  abstains  from  setting  him 


'  Sxpra,  p.  94.  *  Olliver  v.  King,  8  D.  M.  &  G.  118, 

*  Nivcn'c.  Belknap,  2  Johns.  (Amer),      j^cr  Turner,  L.  J. ;  Lindsay  v.  Gibbs,  3 

573,  per  Thompson,  C.  J.  D.  &■  J.  697. 

^  I'airncross  v.  Lorimer,  7  Jur.  N.  S. 

150,  per  Lord  Campbell. 


were  not  as  so  apprdi ended,  the  person  inducing  the  belief  will  he  estop- 
ped from  denying  it  to  the  injury  of  such  person.  Crockett  v.  Lashbrock, 
5  Mon.  530;  "Watson  v.  McLaren,  19  Wend.  557  ;  Petere  v.  Foster,  21 
Wend.  172;  Davis  v.  Thomas,  5  Leigh,  1 ;  Bank  t.  Wollaston,  3  Harring. 
90-  Hicks  V.  Cram,  17  Vt.  449;  Clements  v.  Loggins,  2  Ala.  514;  Roe  v. 
Jerome,  18  Ct.  138 ;  Croat  v.  De  Wolf,  1  R.  I.  393  ;  Robinson  v.  Ju&tice,  2 
Penn.  19  ;  Cowles  v.  Baco,  21  Ct.  451, 

The  fact  tliat  his  conduct  arose  from  carelessness  or  negligence  is  no 
excuse.     Cady  v.  Owens,  34  Vt.  598.      . 

The  doctrine  has  no  application  where  a  mistake  as  to  title  is  mutual, 
and  the  person  having  no  title  has  not  expended  any  money.  Stuart  t. 
Luddinglon,  1  Rand.  403. 


128  MISREPRESENTATION. 

rio-lit,  and  leaves  him  to  persevere  in  liis  error ;  *  or  where  a 
man,  under  an  expectation  created  or  encouraged  by  the  owner 


*  Mere  silence  and  the  making  of  improvements  by  others,  is  not  sufB- 
cient.  TJiere  must  be  some  ingredient  in  the  transaction  which  would 
make  it  a  fraud  in  the  owner  to  insist  upon  his  legal  light.  Silence  will 
postpone  only  where  silence  is  a  fraud.  Folk  d.  Birdelmar,  6  Watts,  339 ; 
Crest  i\  Jack,  3  Watts,  238 ;  Devereux  v.  BurgwjTi,  5  Ired.  Eq.  351 ;  Nevin 
V.  Belknap,  3  Johns.  373 ;  Clabaugh  v.  Byerly,  7  Gill.  354. 

Several  things  are  essential  to  be  made  out  in  order  to  the  operation  of 
the  rule.  Ist.  The  act  or  declaration  of  the  person  must  be  wilful,  that  is 
■with  knowledge  of  the  facts  upon  which  any  right  he  may  have  must  de- 
pend, or  with  an  intention  to  daeeive  the  other  party.  2d.  He  must  at 
least  be  aware  that  he  is  giving  countenance  to  the  alteration  of  the  con- 
duct of  the  other  party.  3d.  And  it  mu^t  appear  that  the  other  party  has 
changed  his  position  by  reason  of  such  inducement.  Copaland  v.  Cope- 
land,  23  Me.  535 ;  Morton  v.  Hogdon,  33  Me.  127 ;  Morris  v.  Moore,  11 
Humph.  433 ;  Taylor  ®.  Zipp,  14  Mo.  482;  Carpenter  v.  Stillwell,  13  Barb. 
128  ;  Eidred  v.  Hazlett,  33  Penn.  307. 

The  word  "  wilfully,"  as  used  in  this  connection,  is  not  to  be  taken  in 
the  limited  sense  of  the  term  "  maliciously,"  or  of  the  term  "  fraudulently ; " 
nordoesit  necessarily  imply  an  active  desire  to  produce  a  particular  im- 
pression, or  to  induce  a  particular  line  of  conduct.  Whatever  the  motive 
may  be,  if  one  so  acts  or  speaks  that  the  natural  consequence  of  his  words 
and  conduct  will  be  to  influence  another  to  change  his  condition,  he  is 
leo-dly  chargeable  with  an  intent,  a  wilful  design  to  induce  the  other  to 
believe  him  and  to  act  upon  that  belief,  if  such  proves  to  be  the  actual 
result.     Preston  v.  Mann,  3}  Ct.  118. 

If  a  party  has  misled  another  under  such  circumstances  that  he  had  no 
reasonable  ground  for  supposing  that  the  person  whom  he  was  misleading 
was  to  act  upon  what  he  was  saying,  he  will  not  be  bound  by  his  represen- 
tations. If  a  stranger  hears  and  acts  upon  his  representations  the  doctrine 
does  not  apply.     Morgan  v.  Spangler,  4  Ohio  St.  R.  103. 

A  refusal  to  speak  with  a  reason  given  for  it  is  not  the  same  thing  as 
silent  acquiescence  in  what  another  is  saying.     Taylor  v.  Ely,  25  Ct.  250. 

The  rule  does  not  apply  where  the  means  and  opportunity  of  tracing 
title  are  equally  open  to  both  parties.  It  can  only  be  held  to  apply 
against  one  wha  claims  under  some  trust  lien  or  other  right  not  equally 
open  and  apparent  to  both  parties.     Tongue  v.  Nutwell,  17  Md.  213. 

The  improvements  must  be  of  such  a  character  as  to  show  that  the 
party  placed  them  there  in  confidence  of  his  being  the  owner  of  the  land. 
Caldwell  v.  Williams,  1  Bailey's  Ch.  175. 

Although  the  right  of  the  party  who  thus  misleads  third  persons  by 
his  silence  is  merely  a  reversionary  interest,  and  subject  to  a  life  estate  in 


MISREPRESENTATION.  129 

of  land  that  lie  shall  have  a  certain  interest,  takes  possession  of 
such  land,  with  the  consent  of  the  owner,  and  upon  the  faith 
of  such  promise  or  expectation,  with  the  knowledge  of  the  for- 
mer, and  without  objection  by  him,  lays  out  moneys  upon  the 
land ;  in  such  cases  a  court  of  equity  will  not  afterwards  allow 
the  real  owner  or  the  landlord,  as  the  case  may  be,  to  assert  his 
legal  right  against  the  other,  without  at  least  making  him  a 
proper  compensation  for  the  expenditure  which  he  has  in- 
curred.^ *  If  the  works  on  which  moneys  have  been  laid  out 
are  of  a  permanent  character,  or  are  works  which  point  to  per- 
manence, the  court  will  not  allow  them  to  be  interfered  with, 
even  upon  the  payment  of  a  proper  compensation.  A  man 
who  by  his  conduct  has  encouraged  another  to  spend  moneys 
on  his  land,  in  erecting  works  of  a  permanent  character,  cannot 
be  permitted  to  put  an  end  to  the  very  thing  which  he  has  ap- 
proved.    All  that  he  is  entitled  to  is  a  proper  compensation  in 

'  East  India  Co.  v.  Vincent,  2  Atk.  Beav.  20 ;  Laird  v.  Birkenhead  Railway 

83;  Dann /'.  Spurrier,  7  Ves.  235  ;  Shan-  Co.  Jolin.  514;  llarrourt  v.   Vv'hite,  28 

non  V.   Bradstreet,  1   Sob.  &  Lef.  52;  Beav.  30.S ;  Arcliboldv.  Scully,  9  II.  L. 

Gre,a:ory«;.  Miglieil,  18  Ves.  328;  Caw-  SCO;  O'Fay  v.   Burke,   8  Ir. 'Ch.   225; 

dor?'.  Lewis.  1  Y.  &  C.  427;  Garrard  Burke  v.  I'rior,    15   Ir.   Cli.  106.     Seo 

n.  O'lU-illy,  3  Dr.  <fe  War.  414;  Clare  y.  Kamsden  ji.  Dyson,  L.   K.    1   App.   Ca. 

Harding,  6  Ha.  273;  Powell  v.  Thomas,  129;  Nuna  v.  Fabian,  L.  R.  1  (Jli.  App.' 

ib.   305 ;  Duke   of  Leeds  v.  Lord  Am-  35. 
hurst,  2  i'h.  117;  White  v.  Wakley,  26 


the  very  person  whom  he  suffers  to  deal  with  the  prop3rty  as  absolute 
o\vner,  the  rule  of  equity  still  applies.  Higginbothum  v.  Barnett,  5  Johns. 
Ch.  184;  Barclay  v.  Davidson,  63  Penn.  406. 

A  party  who  encourages  another  to  buy  up  a  piece  of  property,  can  not 
after\yard-i  buy  up  a  better  title  and  assert  it.  Beaupland  r.  McKeen,  28 
Penn.  124 ;  Davis  v.  Handy,  37  N.  H.  63. 

At  law  neither  concealment  nor  misrepresentation  are  an  estoppel,  and 
there  is  no  rule  which  precludes  a  p  irty  from  showing  his  title.  Jones  v. 
Sasser,  1  Dev.  &  Bat.  402 ;  West  v.  Tilghman,  9  Ired.  163  ;  MePhcrson  v. 
Walters.  16  Ala.  714  ;  Miller  v.  Piatt,  5  Duer,  273  ;  eo7itra,  Corbett  v.  Nor- 
cross,  35  N.  H.  99  ;   Corkhill  v.  Landers,  44  Barb.  218. 

*  Swain  v.  Seamens,  9  Wall.  254 ;  Town  v.  Needham,  3  Paige,  543  ;  Hall 
V.  Fisher,  9  Barb.  17;  Carr  v.  Wallace,  7  Watts,  394;  Eply  v.  Witherow,  7 
Watts,  163. 


130  MISKEPRESEXTATION. 

respect  of  the  land  wliicli  has  been  taken.^  The  principle  ap- 
plies to  companies  as  well  as  individuals.^  The  case  in  which 
the  principle  has  been  carried  to  the  farthest  extent  is  Claver- 
ins:  V.  Thomas.^  It  was  there  held  that  a  man  who  has  stood 
by  and  allowed  moneys  to  be  spent  in  opening  a  mine,  which 
he  knew  conld  only  be  worked  by  a  wayleave  over  his  own 
land,  was  bound  in  equity  to  give  the  wayleave. 

Another  illustration  of  the  principle  that  a  man  who  re- 
mains silent  when  there  is  a  duty  to  speak  is  bound  in  equity, 
is  where  a  man  claiming  a  title  in  himself  to  property  is  privy 
to  the  fact  of  another,  with  color  of  title,  or  pretending  to  title, 
dealing  with  the  property,  as  being  his  own,  or  as  being  unin- 
cumbered, and  conceals  his  claim.  A  man  who  claims  an  in- 
terest in  property  need  not  voluntarily  communicate  the  exist- 
ence of  his  claim  to  a  person  whom  he  knows  to  be  about 
purchasing  the  property,*  but  the  suppression  or  concealment 
of  his  claim  is  a  fraud  in  the  sense  of  a  court  of  equity,  if  a 
man  is  privy  to  the  fact  that  the  apparent  owner  or  party  in 
possession  is  about  to  deal  with  the  property  as  his  own,  and  as 
unincumbered,  and  he  does  not  give  the  party,  with  whom  he 
is  about  to  deal,  notice  of  his  right.  He  will  not  be  permitted 
by  a  court  of  equity  to  set  up  afterwards  his  own  interest 
against  a  title  created   by   the  other.^*    In  a  case  where  a 

•Du1<e   of   Beaufort  v.   Patrick,    lY  554;  SavaGje  v.  Foster,  9  Mod.  36 ;  Rer- 

Beav.  60;  Somer-etshire  Canal  Co.  v.  risford  r.  Milward,  2  Atk.  40;  Beckett 

Harcourt,  2  D.  &  J  596  ;  Mold  ?;.  Wheat-  v.  Cordley,  1  Bro.  C.  C.  357 ;  Govett  v. 

croft,  27  Beav.   516.     See  Bell  v.  Mid-  Ricbmond,  7  Sim.  1 ;  Brown  ?'.  Thorpe, 

land  Railway  Co  ,  3  D.  <fe  J.  673.  11  L.  J.  Ch.  73  ;  Boyd  v.  Bolton,  1  J. 

■•'  Hill  >:  South  Staffordshire  Railway  &  L.  730  ;  Tliompsou  v.   Simpson,  2  J. 

Co.,  11  Jiir.  N.  S.  192.  &  L.    110;  Muholson   v.   Hooper,  4  M. 

»Cit.  5  Ves.  689,  6  Ha.  304.  &  G.  179;  Zulueta  v.  Tyrie,   15  Beav. 

*  See  Hooper  v.  Harrison,  2  K.  &  J.  591;  Mangles  v.  Dixon,  3  ILL.  739; 

103;  lilan-les  v.  Dixon,  3  H.  L.  739.  Olliver  v.   King,   8   D.  M.   <fe  G.  110; 

'  Teas  lale  i'.  Teasdale,   Sel.  Ca.   Ch.  Davies  v.  Davies,  6.  Jur.   N.  S.  1322; 

69;  Hunsden  t'.  Ci  eyney,  2  Vern.  150;  LTpton  v.  Vanner,    1    Dr.    &  Sm.   594; 

Raw  I'.  Pole,  ib.  239;  Draper  v.  Bor-  Hooper  ?;.  Gumm,  L.  R.  2  Ch.  App.  282. 
lase,   ib.   370 ;  Ibbotson  v.   Rhodes,  ib. 


*  Wendell  v.  Y;in  Eensslcr,  1  Johns.  Ch.  344;  Lee  ®.  Porter,  6  .Johns. 
Cb.  268;  Eagle  f.  Burns,  5  Call.  403;  Harrison  v.  Edwards,  8  Litt.  340 j 


MISREPRESENTATION.  131 

mother  heard  lier  son  before  liis  marriage  declare  that  a  certain 
term  was  to  come  to  him  at  her  death,  and  was  witness  to  a 
deed,  whereby  the  reversion  was  settled  on  the  issue  of  the 
marriage,  she  was  lield  compellable  in  equity  to  make  good  the 
settlement.-^  So,  also,  in  a  case  where  a  man  having  a  claim 
upon  property,  which  was  the  subject  of  a  reference,  knew  that 
the  arbitration  was  o-oino-  on  but  did  not  brino;  forward  his 
claim,  he  was  held  bound  by  the  award.^  In  Mocatta  v.  Mur- 
gatroyd,^  the  principle  was  applied  in  the  case  of  a  first  mort- 
gagee, from  the  mere  circumstance  of  his  being  a  witness  to  a 
second  mortgage,  but  the  case  goes  too  far.  In  order  to  post- 
pone a  prior  mortgage,  it  is  necessary  to  prove  against  him 
fraud  or  actual  notice  of  the  subsequent  mortgage.* 

'  Hunsden  v.  Clipyney,  2  Vern.  150.  ^  1  P.  W.  303. 

'  Govett  V.  Ilichuioud,  Y  Sim.  1.  ■•  Eeckett  v.  Cordley,  1  Bro.  C.  C.  353 


Storrs  n.  Barker,  G  Johns.  Ch.  166  ;  Ten  Eick  v.  Simpson,  1  Sandf.  Ch.  244 ; 
Allen  V.  Winston,  1  Rand.  65  ;  Skirving  v.  Neufville,  2  Dessau.  194;  Las- 
selle  v.  Bamett,  1  Blackf.  139;  Dickenson  v.  Davis,  2  Leigh,  401;  Howland 
V.  Scott,  2  Paige,  406;  Raugley  v.  Spring,  8  Shep.  130;  Bird  v.  Benton, 
2  Dev.  179  ;  Governor  v.  Freeman,  4  Dev.  472 ;  Dewey  v.  Fiehl,  4  Met.  381  ; 
Thompson  v.  Sanborn,  11  JST.  H.  201 ;  Tomlin  v.  Den,  4  Harris,  76;  Ivers 
r.  Chandler,  1  Chipnian,  48  ;  Skinner  v.  Strousa,  4  Mo.  93 ;  Brothers  v. 
Porter,  0  B.  Men.  106  ;  Cox  ».  Buck,  3  Strobh.  367  ;  March  v.  Weekerly,  13 
Penn.  250;  Danley  v.  Rector,  5  Eng.  211. 

The  assent  is  as  much  to  be  inferred  from  the  encouragement  to  pay  a 
small  sum  as  the  whole  purchase  money,  for  the  purchaser,  inferring  such 
assent  fiom  such  payment,  may  reasonably  go  on  thereafter  to  complete  his 
purchase.     Eagle  v.  Burns,  5  Call.  463. 

The  fact  that  the  title  is  a  matter  of  record  is  no  defence  to  the  owner, 
Carr  «,  Wallace,  7  Watts,  394 ;  Epley  t.  Witherow,  7  Watts,  163, 

If  the  truth  is  known  to  both  parties,  or  if  both  parties  have  equal 
means  of  information,  the  rule  does  not  apply.  Catlin  v.  Grote,  4  E,  D. 
Smith,  296 ;  Tongue  v.  Nutwell,  17  Md.  212. 

A  party  who  stands  by  at  a  sale  under  an  execution,  may  by  his  con- 
duct preclude  himself  from  afterwards  setting  up  title  to  the  property 
sold.  M'Donald  v.  Lindall,  3  Rawle,  492 ;  Epley  v.  Witherow,  7  Watts, 
163;  Keeler  v.  Vantuyle,  6  Barr,  250;  Whittington  v.  Wright,  9  Geo.  23; 
Moriand  v.  Bliss,  12  B.  Men.  255;  Gottschalk  v.  De  Santos,  12  La,  An. 
473. 


132  MISREPRESENTATION. 

The  equitable  rule  that  a  man  claiming  an  interest  in  prop- 
erty may  not  stand  by  and  conceal  his  claim,  when  he  sees 
another  dealing  with  the  property  as  his  own,  or  as  unincum- 
bered, applies  with  peculiar  force,  if  the  person  claiming  title 
has  in  any  way  actively  encouraged  the  parties  to  deal  with 
each  other,^  *  or  has  confirmed  the  party  in  the  error  into  which 
he  has  fallen,  or  if  he  derives  any  benefit  from  the  delusion  so 
caused.^ 

In  order  to  justify  the  application  of  the  principle,  it  is  in 
dispensable  that  the  party  standing  by  should  be  fully  apprised 
of  his  rights,  and  should  by  his  conduct  encourage  the  other 
party  to  alter  his  condition,  and  that  the  latter  should  act  on 
the  faith  of  the  encouragement  so  held  out.^  f     The  principle 


>  Dyer  v.  Dyer,  2  Ch.  Ca.  108;  Dra-  '  Dann  v.  Spurrier,  1  Ves.  230;  Bar- 

per  V.  liorlase,  2  Vera.  370 ;  Ibbotson  nard  v.  W.illis,  Cr,   &  Ph.  85 ;  Marker 

V.   Rhodes,  ib.   553;  Brown  v.  Thorpe,  v.  Marker,  9  Ha.  16;  Hooper  ?'.  Clark, 

11  L.  J.  Ch.   73;  Davies  v.   Davies,  6  25  L.  J.  Ch.  467;  Eamsden  y.  Dyson,  L. 

J(ir.  N.  B.  1322.  R.  1  App.  Ca.  129. 

"  Nicholson  v.  Hooper,  4  M.  &  C.  179. 


*  Folk  V.  Beidelman,  6  Watts,  339 ;  Aills  v.  Graham,  6  Litt.  440  ;  Black- 
•wood  V.  Joues,  4  Jones'  Eq.  54. 

t  Snelgrove  x.  SuelgTove,  4  Des=sau.  274 ;  Buckingham  v.  Smith,  10 
Ohio,  288;  Ringrow  v.  Warder,  6  B.  Mon.  514;  Whitaker  v.  Williams,  20 
Ct.  98;  Lewis  v.  San  Antonio,  7  Tex.  288;  Tilghman  v.  West,  8  Ired.  Eq. 
183 ;  Dixfield  «.  Newton,  41  Me,  231 ;  McAfferty  v.  Conover,  7  Ohio  St.  R. 
99 ;  Boggs  V.  Merced  et  al.  14  Cal.  279 ;  Newman  v.  Edwards,  34  Penn.  32  ; 
Danforth  v.  Adams,  29  Ct.  107 ;  Junction  R.  R,  Co.  v.  Harpold,  19  Ind. 
347;  Tongue  v.  Nutwell,  17  Md.  212;  Robinson  v.  Justice,  2  Pc^n.  19, 

Where  a  party  acting  under  a  mistake  of  law  or  of  facts,  does  acts 
which  mislead  the  adverse  party,  he  is  estopped  as  well  as  if  he  was  not 
acting  under  <-uch  mistake.  Garner  t\  Bird,  57  Barb.  277;  Barnes  x.  Mc- 
Kay, 7  Ind,  301 ;  Tilton  v.  Nelson,  27  Barb.  595  ;  Aills  v.  Graham,  6  Litt. 
440  ;  Skinning  v.  NeufYille,  2  Dessau.  194  ;  Strong  v.  Elsworth,  2fl  Vt.  3G6; 
Wells  V.  Pierce,  27  N.  H.  503 ;  Storrs  v.  Barker,  6  Johns.  Ch.  160 ;  M'Kel- 
vey  V.  Truby,  4  W.  &  S.  323 ;  Jackson  v.  Inabit,  2  Hill's  Ch,  411 ;  s.  c. 
Riley's  Ch.  9. 

Pos'tive  acts  stand  upon  a  different  footing  from  mere  concealment; 
for  there,  a  title  may  be  postponed  even  without  fraud,  in  accordance  with 
an  equitable  principle  of  universal  application,  that  where  a  loss  must 


MISEEPEESENTATION.  133 

does  not  apply  in  favor  of  a  stranger  who  builds  on  land,  know- 
ing it  to  be  the  property  of  another,  nor  in  favor  of  a  lessee 
who  expends  moneys  with  the  knowledge  of  his  landlord  on  the 
improvement  of  the  estate.  If  a  stranger  builds  on  land  know- 
ing it  to  be  the  property  of  another,  equity  will  not  jDrevent 
the  real  owner  from  afterwards  claiming  the  land,  with  the 
benefit  of  all  the  expenditures  upon  it.  So,  also,  if  a  tenant 
being  in  possession  of  land,  and  knowing  the  nature  and  extent 
of  his  interest,  lays  out  money  upon  it  in  the  hope  and  expec- 
tation of  an  extended  term  or  an  allowance  for  it,  then  if  such 
hope  or  expectation  has  not  been  created  or  encouraged  by  the 
landlord,  the  tenant  has  no  equity  to  prevent  the  landlord  from 
taking  possession  of  the  land  and  buildings  when  the  tenancy 
is  determined.^  *  l^or  does  the  principle  apply  in  favor  of  a 
man  who  is  conscious  of  a  defect  in  his  title,  and  with  such 
conviction  in  his  mind  expends  money  in  improvements  on  the 
estate.'  f 


'  Pillinn:   V.   Armitage,    12   Ves.  78 ;  son,  L.  R.  1  App.  Ca.   129,  per  Lord 

Clare  Hall  v.  Ilardinii:,  6  Ha.  273;  Duke  Kingsdown.     See  Rennie  v.  Young,  2 

of  Beaufort  v.  Patrick,   17  Eeav.   60;  D.  <fe  J.  142. 

Hamer  v.  Tilsley,  John.  487;  O'Fay  v.  *  Kenney  v.  Brown,  3  Ridg.  518. 
Burke,  8  Ir    Ch.  226 ;  Ramsdcn  v.  Dj- 


necessariiy  fall  upon  one  of  two  innocent  persons,  it  shall  be  borne  by  him 
whose  act  has  occasioned  it.     Beaupland  v.  McKeen,  28  Penn.  124. 

The  excuse  of  ignorance  does  not  apply  where  the  misrepresentations 
that  mislead  another  are  made  by  a  party  who  is  consciously  ignorant  of 
the  matter  to  which  they  relate  at  the  very  time  that  he  professes  a  full 
knowledge  of  it.     Preston  v.  Mann,  25  Ct.  118. 

An  express  agreement  recognizing  an  erroneous  boundary  will  conclude 
a  party  where  the  other  party,  acting  upon  the  faith  of  such  agreement, 
has  made  expensive  improvements,  the  benefit  of  which  will  be  lost  to  him 
if  the  line  is  disturbed.  Corkhill  v.  Landers,  44  Barb,  218  ;  Wood  v.  Mc- 
Lellan.  48  Me  375  ;  Combs  v.  Cooper,  5  Minn.  254. 

*  Ferris  v.  Coover,  10  Cal.  589 ;  Odlin  v.  Gove,  41  K  H.  465 ;  Baldwin 
V.  Eichnian,  1  Stockt.  894  ;  Patton  v.  McClare,  1  Mart.  &  Yerg.  333 ;  Gray 
V.  Bartlett,  20  Pick.  180. 

t  McCormick  v.  McMurtrie,  4  Watts,  193;  Buckingham  v.  Smith,  10 


134  MISREPRESENTATION. 

A  man  who,  with  full  knowledge  of  the  real  circumstancea 
of  the  case,  permits  another,  under  a  mistake,  to  execute  a 
deed,  whereby  he  incurs  a  liability,  cannot  be  heard  to  say  that 
he  has  contracted  liability  on  the  faith  of  the  other  being  sub- 
ject to  the  liability.^ 

The  rule  at  law  as  to  leave  and  license  not  being  counter- 
mandable  cannot,  perhaps,  as  far  as  it  goes,  be  distinguished 
from  the  equitable  doctrine  of  acquiescence,^  but  leave  and 
license  executed  may  be  set  up  at  law,  as  giving  a  right  and 
title,  only  in  cases  where  moneys  have  been  expended  by  a  man 
upon  his  own  land.^  No  right  or  title  can  be  acquired  to  an 
easement,  or  other  right  over  the  land  of  another,  although  the 
license  may  have  been  executed,  and  moneys  may  have  been 
expended  upon  the  land  of  the  licensee  by  his  express  permis- 
sion. The  license  may  be  at  any  time  countermanded  at  the 
will  of  the  owner  of  the  soil.*  But  in  equity  the  doctrine  of 
acquiescence  applies  as  well  where  a  man  has  been  induced  to 

»  Bron"-hton  v.  Hiitt,  3  D.  &  J.  501.  Marshall,  10  C.  B.  K  S.   Til ;  Blood  v. 

^  Daviesr.  Marshall,   10  C.  B.  N.  S.  Keller,  11  Ir.  C.  L.  124. 
711   per  VVilles,  J.^  but  see  Swaine  v.  "  Wallis  w.  Harrison,  4  M.  &  W.  538 

Great  Northern  Railway  Co,  9  Jur.  N.  Wood  v.  Leadbitter,  13  M.  &  W.  838 

g   119G  Davies  <•.  Marshall,  10  C.  B.  N.  S.  711 

"»  Winter  v.  Brocljwell,  8  East,  309;  See  Fisher  v.  Moon,  11  L.  T.  N.  S.  623; 

Hewlins  v.  Shiphain,  5  B.    <fe  C.  221;  but  see  Blood  v.  Keller,   11  Ir.  C.  li. 

Liggius  V.  Inge,  7  Bing.  682 ;  Davies  v.  124. 


Ohio,  288;  Hepburn  «,  McDowell,  17  S.  &R.  383;  Crest  v.  Jack,  3  Watts, 

■  238. 

One  joint  tenant  cannot  make  improvements  on  the  common  property 
without  the  consent  of  the  rest,  and  then  claim  to  hold  it  until  reimbursed 
a  proportion  of  the  moneys  expended.     Crest  i>.  Jack,  3  Watts,  238. 

The  law  imputes  knowledge  of  every  fact  of  which  the  exercise  of 
ordinary  diligence  would  have  put  a  party  in  possession,  and  such  an  im- 
putation of  knowledge  is  sufficient  to  rebut  the  inference  of  u  merely  con- 
istructive  fraud,  which  might  otherwise  ba  implied  from  the  silence  of  the 
owner.  Alexander  ®.  Kerr,  2  Rawle,  83;  Chew  «.  Caloitt,  1  Walk.  84, 
KnoufF  V.  Thompson,  IG  Peun.  357. 


MISREPRESENTATION.  135 

expend  moneys  on  tlie  land  of  anotlier,  as  wliere  tlie  expendi- 
ture has  been  on  his  own  land.-^ 

The  equitable  doctrine  with  respect  to  the  part  perform- 
ance of  parol  agreements  is  founded  on  the  general  doctrine  of 
law  as  to  misrepresentation.  At  law  the  express  language  of 
the  Statute  of  Frauds  prevails,  and  the  doctrine  as  to  the  part 
performance  of  parol  agreements  has  no  place.  But  in  equity 
it  is  a  fraud  in  the  eye  of  the  court  to  set  up  the  absence  of  an 
agreement,  where  possession  has  been  given  on  the  faith  of  an 
agreement.  If  a  man  has  been  permitted  to  take  possession 
on  the  faith  of  an  agreement,  it  is  against  equity  that  he  should 
be  treated  as  a  trespasser,  and  turned  out  of  possession,  on  the 
ground  that  there  is  no  agreement.  Where  possession  has 
been  given  on  the  faith  of  an  agreement,  a  court  of  equity  will, 
as  far  as  possible,  ascertain  the  terms  of  the  agreement,  and 
give  effect  to  it.^  IsTothing,  however,  is  part  performance  that 
does  not  put  the  party  into  a  situation  that  it  is  a  fraud  upon 
him,  if  the  agreement  be  not  jDerformed.'"  In  order,  too,  that 
an  act  of  part  performance  may  have  any  operation  whatso- 
ever, it  must  be  shown  plainly  what  the  terms  of  the  agree- 
ment are,  and  it  must  clearly  appear  that  the  act  of  part  per- 
formance relied  on  is  properly  referable  to  an  agreement  such 
as  the  one  alleged  and  is  not  referable  to  another  title.*  The 
expenditure,  for  instance,  by  a  tenant  in  possession  on  repairs, 
is  referable  to  the  title  which  he  has  in  the  estate,  and  cannot 

*  Duke  of  Devonshire  v.  E2:lin,  14  Powell  v.  Love^rove,  8  D.  M.  <fe  G 
Beav.  530;  Duke  of  Beaufort w.  Patrick,  857;  Pain  «.  Co'ombs,  1  D.  &  J.  Si- 
ll lieav.  CO  ;  White?;.  Wakley,  26  Beav.  Lillie  v.  Legh,  3  D.  <fe.  J.  2(14  ;  Lincoln 
20 ;  Laird  v.  Birkenhead  Railway  Co.,  v.  Wright,  4  D.  <fe  J.  16;  Stcevens' 
John.  500;  Fislier  v.  Moon,  11  L.  T.  N.  Hospital  v.  Dyas,  15  Ir.  Ch.'403. 
S.  623.  '  (  linan  v.  Cooke,  1  Sch.  &  Lef.  41 

'  Mundy  v.  Jolliflfe,  5  M.  <fe  C.  Ill;  *  Fry  on  Specific  rerforriiance,  174. 
Wilson  V.  West  Hartlepool  Railway  See  Dale  ;■.  Hamilton,  5  Ha.  381 ;' Lin- 
Co.,  2  D.  J.  &  S.  475.  See  Bond  v.  coin  >:  Wright,  4  1).  <fe  J.  16;  I'l'ice  v. 
Hopkins,  1  Sch.  &  Lef.  413,  433;  Mor-  Sal;i.sbiu-g,  32  Buav.  446;  'Lord  v. 
phett  V.  Jones,  1  Sw.  172 ;  Surcouibe  v.  Underdoiick,  1  Sandf.  Ch.  (Amcr.),  46  • 
Pinnigcr,  3  I).  M.  tfe  G.  571;  Great  Smith  v.  Uiulordonck,  ih.  579;  Wolfe 
Northern  Railway  Co.  v.  Lancashire,  v.  Frost,  4  Sandf.  Ch.  (Amer.),  72. 
&c.,    Railway    Co.,   1    Sm.  «fe  G.  81 ; 


136  MISREPRESENTATION. 

be  deemed  an  act  of  part  performance.^  But  the  laying  out  of 
money  by  a  tenant  in  possession,  in  pursuance  of  a  parol  agree- 
ment for  a  lease,  or  upon  the  faith  of  a  specific  engagement 
that  possession  should  not  be  disturbed,  is  an  act  of  part  per- 
formance.2  So,  also,  and  upon  the  same  principle,  the  posses- 
sion of  a  tenant  after  the  expiration  of  a  lease,  is  not  a  part 
performance,  for  it  is  referable  to  the  title  he  has  ;  ^  but  it  is 
otherwise  if  the  possession  be  referable  to  an  agreement  for 
renewal.*  The  mere  payment  of  money  is  not  part  perform- 
ance,^ nor  is  marriage  an  act  of  part  performance,  but  if  one  of 
the  contracting  parties  agrees,  as  the  consideration  for  a  mar- 
riage, to  do  something  more  than  marry,  as  to  settle  an  estate, 
and  in  consideration  of  that  promise  the  other  party  contracts 
to  make  a  settlement,  the  settlement  made  by  the  one  con- 
tracting party  is  a  good  act  of  part  performance.® 

The  o-eneral  doctrine  of  law  with  respect  to  misrepresenta- 
tion applies  to  cases  where  a  man,  by  his  negligent  conduct, 
puts  it  in  the  power  of  a  third  party  to  commit  a  fraud  upon 
another.  If  a  man,  by  neglect  of  some  doty  that  is  owing  to 
another,  or  to  the  general  public,  of  which  he  is  one,  leads  him 
to  believe  in  the  existence  of  a  certain  state  of  facts,  and  the 
belief  so  induced  is  the  proximate  cause  of  leading  him  to  do  a 
certain  act,  whereby  he  is  prejudiced,  the  former  cannot  be 
afterwards  heard  as  against  the  latter  to  show  at  law  that  that 
state  of  facts  did  not  exist.'     The  same  principle  obtains  in 

•Wills   V    Stradling,    3  Ves.    378;  'Wills   v.   Stradling,    3   Ves.  318; 

Pillin"-  V.   Armilage,   12  Ves.  IS;  Sav-  Lincoln  v.  Wriglit,  4  D.  &  J-  20. 
ao-e  »■  Carroll,  1  B.  &  B.  265;  Brennan  *  Dowell  v.  Dew,   1  1.  <fe  C.  C.  C. 

v°  Bolton,   2   Dr.    &   War.    349.     See  345. 

Ramsden  v.  Dyson,  L.  R.   1  App.  Ca.  '  Clinan  v.  Cooke,  1  Sch.  <&  Lef  41 

,29  Hammersley  v.  De  Biel,  12  CI.  & 

'  Wills  V    Stradling.   3  Ves.    378  ;  Fin.  45.     See  Warden  v.  Jones,  2  D.  & 

Mimdv   V     JoUitle,    5    M.    &   C.    167;  J.  76;  Caton  v.  Caton,  L.  R.  1  Ch.  Ap. 

Sutherland  v.  Briggs,  1  Ha.  26  ;  Shilli-  137,  2  L.  R.  Ap   Ca.  127.     See  further 

beer  v  Jarvis  8  D.  M.  .fe  G.  79;  L^ird  on  the  subject  of  part  performance,  Fry 

,.  Birkenhe;id  Railway  Co.,  John   500;  on    Speciiic    Performance,     174—190; 

mmn.    Fabian,  L.   R.  1   Ch.  Ap.  os!  .^ug.  V.  &  F.  150-157 ;  Dart.  V.  &  P. 

See  Rarasdea  v.  Dyson,  L.  R.  1   App.  655—661.         ^,    ,,     .     ,    .    .        ^ 
p,     ^29  Swan  v.  North  Australasian  Co., 


misiiepeese:ntatiok.  137 

equity.  If  a  man,  although  he  may  be  acting  in  the  most  en- 
tire good  faith,  is  guilty  of  such  a  degree  of  neglect  as  to 
enable  another  so  to  deal  with  that  which  is  his  right,  as  to 
lead  an  innocent  party  to  assume  that  he  is  dealing  with  his 
own,  he  creates  an  equity  against  himself  in  favor  of  the  inno- 
cent party  who  has  been  so  misled,  and  must  bear  the  loss.^ 
"  It  is  a  general  principle  of  equity,"  said  Turner,  L.  J.,  in 
Tayler  v.  Great  Indian  Peninsular  Railway  Company,'  "  that 
wherever  one  of  two  innocent  parties  must  suiFer  by  the  acts 
of  a  third,  he  who  has  enabled  the  third  party  to  occasion  the 
loss  must  sustain  it."  ^  But  to  bring  a  case  within  the  prin- 
ciple, it  is  necessary  that  the  representation  allowed  to  be  con- 
veyed to  the  mind  of  one  of  the  two  innocent  parties,  by  the 
negligent  conduct  of  the  other,  should  be  false,  and  that  he 
should  believe  it  to  be  true,  and  should  not  have  the  means 
which  would  enable  a  reasonable  man  to  discover  the  false- 
hood,* and  that  the  negligence  should  be  in  respect  of  some 
duty  cast  upon  the  person  who  is  guilty  of  it,  and  should  be  in 
the  transaction  itself,  and  should  be  a  proximate  and  necessary 
cause  of  the  transaction.  It  is  not  sufficient  that  it  should  be 
only  remotely  connected  with  it.^ 

The  application  of  the  princij)le,  and  the  determination  of 
the  better  equity,  as  between  two  innocent  parties,  who  have 
been  defrauded  by  a  third  party,  is  often  a  matter  of  much 
nicety.**    If  there  be  anything  in  the  transaction  calculated  to 


2  H.  <fe  C.  182.     See  Bank  of  Ireland  *  Yandelenr  v.   Blagrave,  \1  L.  J. 

V.  Trustees  of  Evans'  Charities,  5  H.  L.  Ch.  45.     See  Kennedy  v.  Green,  8  M 

409.  <fe  K.  699. 

*  Teasdale  v.  Teasdale,  Sel.  Ca.  Ch.  '  Swan  v.  North  British  Anstrala- 
59;  Evans  v  Eicknell,  G  Ves.  181 ;  Van-  sian  Co.,  2  II.  &,  C.  182.  See  Trustees 
deleur  v.  Blasjrave,  17  L.  J.  Ch.  45;  of  Evans'  Charity  v.  Bank  of  Ireland 
"West  V.  Jones^,  1  Sim.  N.  S.  205  ;  Wal-  5  II.  L.  389 ;  NicoU's  Case,  3  D.  <fe  j! 
dron   V.   Sloper,    1    Drew,  193 ;  Perry  38*7. 

Ilerrick  v.    Attwood,  2    D.   <fe  J.   21;  "  See  Frazer  v.  Jones,  5  ITa.  475,  IT 

Layard  v.  Maud,  L.  R.  4  Eq.  404.  L.  J.  Ch.  353;  Jones  v.  Thomas   ll'w 

"  4  I),  .fe  J.  559,  574.  R.  50. 

*  See  Greenfield  v.  Edwards,  2  D. 
J.  &.  S.  582. 

10 


138  MISEEPEESENTATIOlir. 

excite  suspicion,  or  to  put  one  of  the  parties  upon  inquiry,  and 
he  abstains  from  inquiry,  the  consequences  of  his  own  neglect 
must  fall  upon  him.^  Where,  for  instance,  an  innocent  party 
had  accepted  an  instrument  which,  upon  its  very  face,  was 
devoid  of  legal  validity,  the  court  held  that  as  between  him 
and  another  innocent  party,  the  loss  must  fall  upon  him.' 

In  cases  where  there  is  nothing  to  put  either  of  the 
parties  upon  inquiry,  the  court,  in  determining  the  question 
upon  which  of  two  innocent  parties  the  loss  must  fall,  has 
regard  to  the  relation,  if  any,  between  the  parties,  and  to 
their  respective  rights  and  omissions.  Any  negligence  or 
indiscretion  on  the  part  of  the  one,  may  give  the  other  a 
better  equity.^  "Where,  for  instance,  a  man  having  dealings 
with  another,  duly  and  formally  executed  a  deed  in  respect  of 
the  dealings,  and  delivered  the  deed  to  the  agent  of  the  other 
party,  without  receiving  the  purchase-moneys,  and  the  agent 
received  the  moneys  from  his  principal  and  misappropriated 
them,  it  was  held  that  the  loss  must  fall  on  the  former, 
inasmuch  as  he  had,  by  his  negligence  in  delivering  the  deed 
to  the  agent,  put  it  into  his  power  to  commit  the  fraud.*  A 
man  who  has  permitted  himself  to  be  made  a  tool  of  by 
another,  in  whose  hands  he  has  left  the  deed,  cannot  set  up 
as  against  a  third  party,  who  has  acted  fairly  and  honestly  in 
the  transaction,  that  he  has  been  deceived.^  Where,  on  the 
other  hand,  a  man  having  dealings  with  another,  in  respect 


'  Kennedy  v.  Green,  3  M.  <fe  K  699.  H.  &  M.  359  ;  Dowle  v.  Saunders.  2  H. 

See  infra.  Notice.  <fe  M.  250. 

'  Taylor  v.  Great  Indian  Peninsular  *  West  v.  Jones,  1  Sim.  N.  S.  208. 

Co.,   4  D.  &.  J.   559.     See  Cottam  v.  See   Young   v.   White,    7   Beav.    508; 

Eastern  Counties  Railway  Co.,  1   J.  <fe  Young  v.   Guy,  8  Beav.  147;  Griffin  v. 

H.  243;  Donaldson  i-.  GiUott,  L.  R.   3  Clowes,  20  Beav.  61;  Ru^houti-.  Turner, 

E.r.  277.  5  W.  R.  670  ;  Wrout  v.  Dawes,  25  Beav. 

'' Vandeleur  r-.  Blagrave,  6  Beav.  565,  369;  Smith    v.    Evans,    28   Beav.    62; 

IT  L.  J.  Ch.  45 ;  Hiorns  v.  Houlton,  16  W  all  v.  Cockerell,  3  D.  F.  <fe  J.  737;  10 

Beav.  259;  Waldron  r.  Sloper,  1  Drew,  H.  L.  229;  Adsetts  v.  Hives,  33  Beav. 

193;  Cottam  r.  Eastern  Counties   Uail-  52. 

way  Co.  1  J.  A  Ha.  243  ;  Case  v.  James,  '  Greenfield  v.  Edwards,  2  D.  J.  <Sc  S. 

8  D.  F.  <fe  J.  264 ;  Spaight  v.  Cowne,  1  696. 


MISREPEESENTATIOir.  139 

of  wliieh  the  same  person  acted  as  agent  for  both  parties, 
delivered  to  the  agent  an  instrument,  reciting  the  payment  of 
the  purchase-moneys,  but  without  the  receipt  for  the  moneys 
being  signed,  and  the  agent  received  the  moneys  in  payment 
from  the  other  party,  but  did  not  pay  them  over  to  the 
former,  or  inform  him  that  they  were  in  his  hands,  it  was 
held  that  the  latter,  who  had  paid  the  moneys  into  the  hands 
of  the  agent,  must  bear  the  loss.^ 

The  question  as  to  whic^  of  two  innocent  parties  must 
bear  the  loss  occasioned  by  the  fraud  of  a  third  party, 
sometimes  arises  in  cases  where  a  banker  has  paid  moneys 
upon  a  forged  cheque.  Payment  on  a  forged  cheque  is  not 
any  payment  at  all  as  between  the  party  paying  and  the 
person  whose  name  is  forged.^  But  cases  may  exist  in  which 
such  payment  may  be  made  valid  by  reason  of  collateral 
matters.  Where  there  has  been  negligence  or  want  of  due 
caution  in  the  circumstances  that  were  the  immediate  cause 
of  the  payment,  on  the  part  of  the  person  whose  name  is 
forged,  he  cannot  set  up  the  invalidity  of  the  document  as 
against  his  bankers,  who  have  been  induced  thereby  to  pay 
moneys  upon  it,  if  it  appears  that  they  have  acted  in  the 
matter  with  reasonable  caution.^  In  Young  v.  Grote,*  for 
instance,  the  customer  of  a  bank  signed  a  cheque  in  blank, 
to  be  filled  up  by  his  wife,  with  whom  he  left  it,  and  she 
filled  it  up  with  a  sum  of  £50,  written  so  inartificially  that  a 
servant  was  able  to  insert  the  words  "  three  hundred ''  before 
the  word  "  fifty,"  so  as  to  deceive  the  bank  without  blame 
on  their  part.  It  was  held  that  the  loss  must  fall  on  the 
customer. 


'  Vandcleur  ?•.  Elapravo,  6  Bcav.  505,  *  Orr  v.  Union  Bank  of  Scotland,  1 

17  L.  J.  (  h  45.    Ste  raislioiit  v/\  inner,  Macq.  513. 

5  W.  i;.  070;  Ogilvie  v.   JcafriH.n,   2  '  lb.  f,23;  British  Linen  Co.  v.  Cale- 

Gin   ::r)3  ;  Sjiaiiilit  v.  Cowne,  1  II.  &  M.  donian  In-uranie  Co.  4  Macq.  114. 
3511;   Wi.U  V.  Cockerfll,    10   11.  L.  229;  «  4  Bing.  263. 

Adsntts  V.  Hives.  33  Bejiy.  52. 


140 


MI  SREPRE  SENT  ATION. 


Ill  oases  arising  between  the  owner  of  tlie  legal  estate, 
or  a  first  mortgagee,  and  a  person  who  claims  an  equity 
upon  the  estate,  or  the  title  deeds,  the  application  of  the 
principle  differs  from  the  rule  which  applies  in  ordinary 
cases.  In  order  that  the  owner  of  the  legal  estate,  or  first 
mortgagee,  should  be  postponed  to  a  subsequent  incumbrancer, 
it  is  not  suflicient  to  make  out  a  case  of  mere  negligence.  To 
have  that  effect,  a  case  of  gross  negligence  must  be  made  out.^ 
If  a  man,  in  taking  the  legal  estate,  makes  no  inquiry  for 
the  title  deeds,  but  allows  them  to  remain  in  the  hands  of 
the  vendor  or  mortgagor,  his  conduct  affords  evidence  of  an 
amount  of  negligence  sufiicient  to  justify  the  court  in  im- 
puting to  him  a  knowledge  of  those  facts  which,  by  the  use 


'  Peter  n.  Paissell,  2  Vern.  '726  ;  Evans 
V.  Bicknell,  6  Yes.  174,  191;  Colyer  v. 
Finch,  5  H.  L.  905 ;  Carter  v.  Carter,  3 
K  <fe  J.  646  ;  Perry  Herrick  v.  Attwood, 
2  D.  <fe  J.  21.  The  distinction  between 
mere  negligence  and  gross  negligence 
was  recognized  by  the  Roman  lawyers. 
Culpa  levis,  in  the  language  of  the  Rom- 
an law,  is  the  want  of  that  diligence 
which  is  taken  by  prudent,  careful 
persons ;  culpa  lata  is  the  want  of  that 
diligence  wliich  might  be  expected  even 
of  a  person  of  less  than  ordinary  pru- 
dence. Lindl.  on  Jur.  131,  Culpa  lata 
was  considered  generally  equivalent  to 
dolus.  Lata  culpa  dolo  comparatur.  Dig. 
11,  tit.  6,  lei:.  1,  ^  1.  "Lata  culpa  est 
nimia  negligentia,  id  est  non  intelligere 
quod  omnes  intelliffunt."  Dig.  Lib.  50, 
tit.  16,  leg.  213.  "Si  quis  non  aleum 
modum  qucm  nominum  natura  desiJerat 
diligeuH  ed,  fraude  no)i  caret.'"  Dig. 
Lib.  16,  tit.  3,  leg.  32.  "  Sensus  est," 
adds  a  commentator,  ib.,  "latam  culpam 
duobus  indiciis  deprchendi.  Primo  si 
quis  non  ad  eum  modum  facial,  quo 
omnea  homiucs  faciunl  :  altera,  si  quis 
non  eodem  modo  in  re  aliena  ac  in  suis 
rebus  versetur  ;  ntrumqw:  dolo  proximum, 
est.  Levis  est  quotiis  eaiulem.  iu  alienis 
qunm  in  su's  rebus  dilif/enliam  etfdem 
prcestat,  non  tamen  earn  qnam  circum- 
spectiores  homines  el  diligentissimv  adhi- 
bent:  et,  ut  p  lucis  dicam,  levis  culpa  est 
con'^veta  in  rebus  suis  et  alienis  negligen- 


tia  ;  lata  est  in  suis  diligcnfia,  in  alienis 
ner/ligentia."  If  the  fault  is  one  yhich 
any  man  in  his  senses  would  have 
scrupled  to  commit,  tliere  is  lata  culpa: 
if  the  fault  consists  in  falling  short  of 
the  highest  standard  of  carefulness  to 
avoid  injury  that  could  be  found ;  such, 
for  instance,  as  the  carefulness  em- 
ployed in  the  management  of  afFiiirs  by 
a  person  who  would  deserve  to  be  called 
bonus  priterfamiliaf.,  the  culpa  was  levis 
or  levisnima.  Or,  again,  it  might  consist 
in  falling  short  of  the  care  which  the 
person  guilty  of  the  culpa  was  accus- 
tomed to  bestow  on  his  own  affairs. 
Lata  culpa  was  treated  very  mucii  on 
the  same  fooling  as  dolus,  as  there  al- 
ways seems  something  wilful  in  the  ex- 
treme negligence,  the  crassa  negligeutia 
wliich  characterized  the  lata  culpa. — 
Bandars'  Inst,  p  477.  When  it  is  said 
by  the  Roman  lawyers  that  negligence, 
heedlessness,  or  rashness  is  equivalent, 
in  certain  cases,  to  dolus,  the  Ejeaning 
is,  that,  judging  from  the  conduct  of 
the  party,  it  is  impossible  to  determine 
wliether  he  intended,  or  whether  lie 
was  negligent,  heedless,  or  rash ;  and 
that,  such  being  the  case,  it  shall  be 
presumed  that  he  intended,  and  his 
liability  shall  be  adjudged  accordingly', 
provided  that  the  question  arise  in  a 
civil  action. — Austin's  Lect.  on  Jur.  vol, 
II,  p.  107. 


MISREPRESENTATION.  141 

of  ordinary  diligence  lie  must  have  discovered.  So,  also, 
gross  negligence  will  be  imputed  to  a  man  vi^lio,  liaving 
parted  with  the  title  deeds  for  a  reasonable  purpose,  allows 
them  to  remain  out  of  his  possession  for  an  unreasonable 
time.  But  if  a  man,  on  taking  the  legal  estate  land  fide, 
inquires  for  the  title  deeds,  and  a  reasonable  explanation  or 
excuse  is  given  for  their  non-deli\'ery,  or  if  he  parts  with 
them  for  a  reasonable  purpose,  and  does  not  allow  them  to 
remain  out  of  his  hands  without  making  reasonable  inquiries 
for  them,  or  using  reasonable  endeavors  to  get  them  back, 
gross  negligence  will  not  be  imputed  to  him,  although  a 
fraud  may  be  practised  by  means  of  them  upon  an  innocent 
party.i 

In  cases,  however,  where  the  contest  lies  between  parties 
having  merely  equitable  interests,  unaccompanied  by  the  legal 
estate,  an  equitable  mortgagee  who  either  omits  to  get,  or 
who  having  got  the  deeds,  gives  them  up,  and  thereby  arms 
the  mortgagor  with  the  means  of  dealing  with  the  estate,  as 
the  absolute  legal  or  equitable  owner,  free  from  any  shadow  of 
incumbrance  or  adverse  equity,  will  be  postponed  to  another 
equitable  incumbrancer  who  has  got  possession  of  the  deeds, 
and  whose  equity  in  other  respects  is  of  the  same  nature  and 
quality.^  In  examining  into  the  relative  merits  or  equities 
of  two  parties  having  adverse  equitable  interests,  the  court 
directs  its  attention  not  only  to  the  nature  and  conditions  of 
their  respective  equitable  interests,  but  to  the  circumstances  of 


'  Peter  v.  Russell,  2  Vern.  726 ;  Mar-  Ernest,  3  D.  J.  <fe  S.  116.     See  Allen  v. 

tincz  V.  Cooper,  2  lUiss.  198  ;  Farrow  v.  Kni^lit,  11  Jur.  527;  Dowle  v.  SaunckTS, 

Rees,  4  Beav.  18  ;  Stevens  v.  Stevens,  2  211.  it  M.  242 ;  but  see  Lnyard  v.  Maud, 

Coll.    20;   Wortliington   »;.   Morgan,  16  L.  R.  4  Kq.  4(Hi,  ;>«•  Miiliiis,  V.-C. 
Sim.  547;  Hewitt  v.  Loospiuore,  9  11a.  ^  Allen  /'.  Knighr,  5  11a.  272,  11  Jur. 

449;  Rayne  v.  Baker,  1  Gift".  246;   Col-  527;   Waldron   v.  Slopur,  1  Drew.  193; 

yer  v.  Finch,   5  II.  L.   905;  Carters.  Rice  v.  Rice,   2  Drew.  83;    Dowle   v. 

Carter.  3  K.  tfe  J.   646;  Perry  Herrick  Saunders,  2  II.   <fe  M.  242;  Layard  v, 

V.  Attwoail,    2   D.  &  J.    21 ;    Hunt   i'.  Maud,  L.  R.  4  Eq.  397. 
Elmes,  2  1).  F.  «fc  J.   578 ;  Hop^ood  v. 


142  MISEEPEESENTATION. 

their  acquisition,  and  the  whole  conduct  of  each  party  with 
respect  thereto.* 

No  priority  can  be  acquired  through  the  medium  of  a 
breach  of  duty.'  JSTegligence  will  not  be  imputed  to  a  man 
for  leaving  his  title  deeds  in  the  hands  of  his  solicitor^,  or 
deliveriDs:  a  transfer  of  shares  and  certificates  to  a  broker  for 
the  purj)ose  of  registration  * ;  nor  will  negligence  be  imputed 
to  trustees  for  leaving  documents  of  title  in  the  hands  of  one 
of  their  number",  or  a  corporation  seal  in  the  hands  of  their 
secretary.^ 

In  the  case  of  equitable  interests  in  personal  estate,  or 
choses  in  action,  a  purchaser  or  other  incumbrancer,  who  fails 
to  give  notice  of  his  interest  to  the  person  in  possession  of  the 
fund,  will  be  postponed  to  an  incumbrancer,  though  subse- 
quent in  date,  who  gives  notice.'  But  this  rule  has  no  ap- 
plication whatever  to  real  estate.  As  between  equitable 
incumbrancers  of  real  estate,  he  whose  security  is  prior  in 
date,  has  the  better  equity.  He  who  takes  the  first  security 
is  entitled  to  priority  over  a  person  who  takes  a  subsequent 
security,  notwithstanding  that  the  latter  may  have  been  be- 
forehand in  giving  the  party  in  possession  of  the  estate  notice 
of  his  security.^  An  equitable  incumbrancer  on  real  estate  is 
not  as  against  another  equitable  incumbrancer  postponed  by 
any  absence  of  activity  in  asserting  his  legal  right,  except 
guch  as  amounts  to  fraud.® 


'  Rice  V.  Rice,  2  Drew.  80.  *  Bank  of   Ireland  v.   Trustees  of 

"  Cory  r.  Eyre,  1  I).  J.  <fe  S.  149.  Evans'  Charities.  5  H.  L.  409. 

^  Jb.,  Bozon  V.  Williams,  3  Y.  &  J.  '  Dearie  v.  Hall,  3  Russ.  1;  Love- 

150.  ridge  v.  Cooper,  ib.  30  ;  Foster  v.  Black- 

♦  Donaldson  v.  Gillott,  L.  R.  3  Eq.  stone,  1  M.  &  K.  297 ;  Martin  r.  Sedg- 

277.  wick,  9  Beav.  333 ;  Etty  v.  Bridges,  2 

'  Cottam  V.  Eastern  Counties  Rail-  Y.  &  C.  C.  0.  486;  Thompson  v.  Tom- 
way  Co.  1  J.  &  II.  243.     See  Carter  v.  kins,  2  Dr.  <fe  Sm.  8. 
Carter,  3  K.  &  J.  647;   Stackliouse  v.  *  Jones  r.  Jones,  8  Sim.  642;  Wilt- 
Countess   of  Jersey,   1   J.    <t  H.   721;  shire  i).  Rabbits,  14  Sim.  76. 
Dodds  V.  Hills,  2  ll.  <fe  M.  424.  '  Rooper  v.  Harrison,  2  K.  «fc  J.  103. 


FEAUD  PEBSUMED.  143 


SECTION  III.— FRAUD  TO  BE  PRESUMED  FROM  THE 
INEQUALITY  OF  FOOTING  OF  THE  PARTIES.— IN- 
ADEQUACY OF  CONSIDERATION. 

Besides  that  kind  of  fraud  wliich  consists  in  misrepresenta- 
tion, express  or  implied,  there  is  another  which  will  be  pre- 
sumed, when  parties  to  a  transaction  do  not  stand  upon  the 
equal  footing  on  which  parties  to  a  transaction  should  stand.^ 
The  general  theory  of  the  law,  in  regard  to  acts  done  and  con- 
tracts made  by  parties  affecting  their  rights  and  interests 
being  that,  in  order  to  bind  them  there  must  be  a  free  and 
full  consent,  and  consent  being  an  act  of  reason  accompanied 
with  deliberation,  transactions,  in  which  one  of  the  parties  ia 
not  as  free  and  voluntary  an  agent  as  the  other,  or  does  not 
apprehend  the  meaning  and  effect  of  what  he  is  doing,  want 
the  very  qualities  which  are  essential  to  the  validity  of  all 
transactions.'^  In  order  that  there  should  be  consent,  it  is 
essential  that  the  consent  should  be  given  with  reflection  and 
with  knowledge,  freely,  without  restraint  or  surprise.  Fraud, 
therefore,  whether  consisting  in  misrepresentation,  conceal- 
ment, violence,  duress,  or  constraint,  will  nullify  consent.^  It 
is  upon  this  principle  that  when  a  person,  who  from  his  state  of 
mind,  age,  weakness,  or  other  peculiar  circumstances,  is  inca- 
pable of  exercising  a  free  discretion,  is  induced  by  another  to 
do  any  act,  which  may  tend  to  the  injury  of  himself  or  his 
representatives,  that  other  shall  not  be  allowed  to  derive  any 
benefit  from  his  improper  conduct.  The  equitable  rule  is  of 
universal  application  that  where  a  man  is  not  a  free  agent. 


•  Edwards  v.  Meyrick,  2  Ila.  68.  *  Toull.  Cod.  Civ.  Ut.  3,  tit.  8, 

»  Story's  Eq.  Jur.  §  222.  n,  38. 


144  FRAUD  PEESUMED. 

or  is  not  equal  to  protecting  liimself,  tlie  court  will  protect 
him.^  * 

It  is  upon  the  general  ground  that  there  is  a  want  of 
rational  and  deliberate  consent  that  the  contracts  of  idiots, 
lunatics,  and  other  persons  no7i  compotes  mentis,  are  generally 
deemed  invalid  by  a  court  of  equity.  The  mere  fact,  however, 
that  a  man  is  in  a  state  of  lunacy,  or  is  even  in  confinement, 
will  not  jMr  se  induce  the  court  to  interfere,  if  it  be  distinctly 


'Evnns  v.  Llewellj-n,  1  Cox,  340;       Monk,  10  Jnr.  N.  S.  091;   Williams  v. 
Cro'sve  v.  nallard,  1  Yes,  Jr.  215;   Cas-       Bay  ley,  L.  R.  1  App.  Ca.  200. 
borne  v.  Barsham,  2  Beav.  76;  Baker  v. 


*  Butler  V.  Haskell,  4  Dessau.  651 ;  McCormick  v.  Malin,  5  Blackf.  503; 
Higliljergcr  v.  Stiffler,  21  Md.  338;  Hallett  v.  Collins,  10  How.  174;  Bunch 
v.  Hurst,  3  Dessau.  273 ;  Brogden  «.  Walker,  3  H.  &  J.  285 ;  Whelan  v. 
Whelan,  3  Cow.  537;  Keeble  v.  Cummins,  5  Hey.  43;  King  v.  Cohen,  6 
Yerg.  75  ;  Mason  r.  Williams,  3  Munf.  126  ;  Whipple  v.  McClure,  2  Root, 
216 ;  McDaniel  v.  Moorman,  1  Harp.  Ch.  108 ;  Rutherford  v.  Ruif,  4  Dessau. 
350;  James  v.  Langdon,  7  B.  Mon.  193;  Brice  v.  Biice,  5  Barb  533 ;  Tracey 
V.  Sackett,  1  Ohio  St.  R.  54;  Cook  v.  Cole,  2  Halst.  Ch.  522,  677;  Crud- 
dock  V.  Cabiness,  1  Swan,  474  ;  Kelly  v.  McGuii-e,  15  Ark.  555 ;  Freeland 
V.  Eldridge,  19  Mo.  325 ;  Freeman  v.  Durggin,  2  Jones'  Eq.  163 ;  Hill  v. 
McLaurin,  38  Miss.  288 ;  Marshall  v.  Billingslea,  7  Ind.  250 ;  Martin  v. 
Martin,  35  Ala.  560 ;  Franklin  i\  Ridenour,  5  Jones'  Eq.  430. 

By  weakness  of  mind  is  meant  a  sort  of  mental  imbecility  approaching 
to  the  condition  of  one  who  is  actually  non  compos  me:,tis  and  analogous 
to  childishness  and  dotage.     Owing's  case,  1  Bland,  370. 

The  only  point  of  inquiry  is  in  regard  to  the  condition  of  the  grantor's 
mind  at  the  time  of  executing  the  instrument.  Beckwith  v.  Butler,  1 
Wash.  (Va.)  224. 

A  court  of  equity  will  not  impute  fraud  merely  because  one  party  is 
more  intelligent  than  the  other,  although  the  bargain  may  turn  out  advan- 
tageously to  the  wiser  party.  Faniam  v.  Brooks,  9  Pick.  213;  Arman  v. 
Stout,  43  Penn  114;  Thomas  v.  Shepperd,  2  McCord's  Ch.  30;  Mann  ». 
Betterly,  21  Vt.  330. 

Courts  will  not  measure  the  degree  of  a  man's  understanding,  but  they 
will  scrutinize  all  the  transactions  of  persons  of  weak  minds.  Coucant  v, 
Jackson,  16  Vt.  335 ;  Hadley  v.  Latimer,  3  Yerg.  537. 

Great  distress  of  mind  and  a  proffer  of  assistance  are  circumstances 
that  will  1)6  considered  in  dt  termining  whether  a  transaction  is  fraudulent. 
Dismukes  v.  Terry,  Walk.  197 ;  Wilson  v.  Watts,  9  Md.  350. 


fKAUD  PRESUMED.  145 

shown  that  the  transaction  was  for  his  own  benefit,  that  no 
coercion  or  imposition  was  used,  and  that  he  knew  clearly 
what  he  was  doing;*  and  so  an  executed  contract,  where  par- 
ties have  been  dealing  fairly  and  in  ignorance  of  the  lunacy, 
will  not  be  set  aside,  if  injustice  would  be  done  to  the  other 
side  and  the  parties  cannot  be  placed  in  statu  quo,  or  in  the 
position  in  which  they  stood  before  the  transaction.^  But  this 
rule  is  not  applicable  to  a  case  where  the  question  is  whether 
the  deed  of  a  lunatic  altering  the  provisions  of  a  settlement  is 
invalid.' 

The  same  rule  prevails  at  law.  To  prove  lunacy  is  not 
enough  to  avoid  a  contract.  A  contract  eutered  into  honci  fide 
and  in  the  ordinary  course  of  business,  is  not  void  by  reason 
of  one  of  the  parties  having  been  at  the  time  a  Imiatic*  To 
vitiate  the  contract,  it  must  appear  that  the  other  party  was 
aware  of  the  fact  of  lunacy  and  took  advantage  of  it.^ 

A  party  claiming  under  a  deed,  is  not  bound  to  prove  the 
sanity  of  the  person  executing  it.  The  burden  of  proof  lies  on 
the  other  side.^ 

Independently  of  that  degree  of  imbecility  which  will 
render  a  man  legally  non  compos,  a  conveyance  may  be 
impeached  lor  mere  weakness  of  intellect,  provided  it  be 
coupled  with  other  circumstances  to  show  that  the  weakness, 
such  as  it  is,  has  been  taken  advantage  of  by  the  other  party  ; 
but  the  mere  fact  that  a  man  is  of  weak  understanding  or  is  in 
intellectual  capacity  below  the  average  of  mankind,  if  there  be 
no  fraud,  or  no  undue  advantage  be  taken,  is  not  of  itself  an 


•  Selby   w.    Jackson,    6   Beav.    192,  i».  Periington,  3  IVfac.  <t  G.  486 ;  Camp 

204.     See  Towart   v.    Sellers,  5  Dow,  bell  r.  Hooper,  3  Sin.  &.  G.  153. 
23l';  Xelrtii  /..  Duiieombe,  9  Beav.  211;  '  Elliott  v.  Ince,  V  D.  M.  k  G.  475. 

Snook  I'.  Watis,   11   Beav.    105;   Sted-  '' Molton  z).  Carnroux,  4  Excli.  17. 

man  I'  Hart,  Kay,  6i»7.  ^  Bcavan   v.  McDonnell,    10   Excli. 

''Nidi  V.  MiVley,  9  Ves.  478,482;  184. 
Williams  v.  Wentworth,  5  Beav.  325;  °  Jacobs  t»  Richards,  IS  Beav.  305. 

Jacobs  V.  llicburda,  18  Beav.  300;  Price 


146  FRAUD  PRESUMED. 

adequate  ground  to  set  aside  a  transaction. *  *  Till  a  man  be 
declared  legally  non  comj^os,  a  deed  executed  by  bim  is  good.** 
Tbe  common  law  bas  not  drawn  any  discriminating  line  by 
whicb  to  determine  bow  great  must  be  tbe  imbecility  of  mind 
to  render  a  transaction  void  and  bow  mucb  intellect  is  neces- 
sary to  support  it.'  Tbe  boundaries  between  actual  insanity 
and  great  mental  weakness  are  so  very  narrow  tbat  tbe  court 
must  judge  of  tbis  in  eacb  case  upon  facts  and  circumstances.^f 
Witb  regard  to  wbat  sball  constitute  mental  capacity,  tbe 
rule  in  equity  is  tbe  same  as  tbe  rule  at  law.  "  Tbere  cannot," 
said  Lord  Hardwicke,  in  Bennett  v.  Wade,'*  "  be  two  rules  of 
judging  in  law  and  in  equity  upon  tbe  point  of  insanity  ;"  and 
in  Osmond  v.  Fitzroy,®  tbe  Master  of  tbe  Kolls  said  tbere  was 

»  Blachford   v.    Cbristian,    1  Knapp,  champ,  3 Bligh,  20  n.;  Addis  r.Campbell, 

1Z  ;  B;dl  i:   Mannin,  3  liligh,  N.  S.  1,  1  4  Beav.  401  ;  llarrod  v.  Harrod,  1  K.  & 

Dow,  &  CI.  381.  J.  1 ;  Longmate  i-.  Ledger,  2  Giff.  Ui3  ; 

="  Osmond  c.  Fitzroy,  3  P.  Wms.  129.  Clarke   v.    Sawyer,  3  Sandf.  (Anier.), 

See  Garrside  v.  Ishorwood,  1  Bro.  C.  0.  357.     See,  as  to  want  of  assent  arising 

559  ■  Jacobs  v.  Riclurds,  18  Beav.  300.  from  pirtial  insanity,  monomania,  de- 

Corap    Evans   v.  Blood,  3  Bro   P.   C.  lusion,  <fec.,  <fec.,  Dew  «j.  Clarke,  5  ilus3. 

6S2.  167;   Waring  v.  Waring,  6  Moo.  P.  C. 

^Jackson  v.  King,  4  Cow.  (Araer.),  341  ;  Creagh  v.   Blood,  2  J.  &  L.  509. 

207  ■  JSIanby   v.   Bewicke,   3   K.   <fe  J.  See  also  Steed  v.  Calley,  1  Keen,  620. 

342  '  2  Atk.  327. 

*  Bennett  «-.  Wade,  9  Mod.  315.     See  "3  P.  Wins.  130. 
White  V.  Small,  2  Ch.  Ca.  103 ;  Bell  v. 
Uoward,  9  Mod.  ii02 ;  Hudson  v.  Beau- 


*  "Wilson  V.  Watts,  9  Md.  356  ;  Smith  v.  Beatty,  2  Ired.  Eq.  456  ;  Far- 
nam  v.  Brooks,  9  Pick.  213  ;  Simeon  v.  Wilson,  3  Edw.  Ch.  36  ;  O wing's 
Ca33,  1  Bland.  370 ;  Clark  o.  Clark,  3  Hey,  23 ;  Day  v.  Seeley,  17  Vt.  542 ; 
Whitehorn  v.  Hlnes,  1  Munf.  557  ;  McCraw  v.  Davis,  2  Ired.  Eq.  618 ; 
Buffalow  V.  Bullalow,  2  Djv.  &  liat.  Eq.  241 ;  Yoiiug  v.  Stevens,  4S  N.  H. 
133;Rip;)y  v.  Grant,  4  Ired.  Eq.  443;  Sprague  u.  Duel,  11  Paige,  480 ; 
Mace  «.  lioyer,  30  Penn.  99;  Gass  v.  Mason,  4  Sneed,  497 ;  Waltou  ij. 
Wbrthington,  5  Sneed,  282 ;  Davis  v  McNalley,  5  Sneed,  383. 

A  po.:^ition  in  a  court  of  justice  founded  upon  what  is  in  effect  the  stulti- 
fication of  the  person  who  assumes  that  position  is  one  to  be  considered 
with  much  ditiidence.     Eyre  v  Potter,  15  How.  43. 

t  Owuig's  Case,  1  Bland,  370;  Harding  v.  Handy,  11  Wheat.  103; 
Young  V.  Stevens,  48  K  H.  133. 


FEAUD  PRESUMED.  147 

no  such  thing  as  an  equitable  incapacity,  where  there  was  a 
legal  capacity.* 

If  a  man  be  drunk  to  the  extent  of  complete  intoxication, 
so  as  to  be  no  longer  under  the  guidance  of  reason,  or  is  in  a 
state  of  excitement  from  excessive  drinkinoj,  almost  amountino: 
to  madness,  any  transaction  which  he  may  enter  into  while  he 
is  in  that  state  is  invalid.*  If,  however,  the  degree  of  intoxi- 
cation falls  short  of  such  complete  intoxication,  he  cannot  have 
relief,  unless  it  appear  that  he  was  drawn  in  to  drink  by  the 
contrivance  of  the  other  party,  and  that  an  unfair  advantage 
was  taken  of  his  situation.^  f  The  rule  at  law  on  tiie  subject 
agrees  with  the  rule  in  equity.^ 

The  rule  is  the  same  both  at  law  and  in  equity  with  respect 
to  the  general  incapacity  of  infants  to  enter  into  a  binding  con- 
tract. A  man  who  enters  into  a  contract  during  his  minority 
is  not  either  at  law  or  in  equity  bound  thereby  after  his 
majority  on  the  mere  ground  that  without  any  false  assertion 

'  See  Manby  v.  Bewicke,  3  K.  &,.  J.  539 ;  Wiltshire  v.  Marshall,    14  W.  R. 

342.  602.     See  Addis  v.  Canipbt-ll,  4  Hcav! 

*  Cory  V.  Cory,  1  Ves.  19;   Cooke  v.  401;   Maitin   v.  Pycroft,  2  D  M.  <fe  G. 

Clayworth.  18  Ves.  16  ;  Say  v.  Barwick,  800;   Gardner   v.    Gardner,  22   Wend 

1   V.   <fcB.  195;   Butler  w.  Mulvihill,  1  (Anier.),  526. 

Bligh,  137;  Linhtfoot  v.  Ilcron,  3  Y.  cfc  '  Gore  v.  Gibson,  13  M.  &  W.  623, 

C.  586 ;  Na-le  v.  Baylor,  3  Dr.  &  War.  626  ;  Molton  v.  Camroux,  4  Exch.  17,' 

60;   Shaw  v.   Thackeray,  1  Sm.   &  G.  19;  Hawkins  «;.  Bone,  4  Y.  &,  F.  313. 


*  Prentice  v.  Achom,  2  Paige,  30 ;  Wiggleswortli  v.  Steers,  1  H.  &  M. 
70;  Hutchinson  t.  Brown,  1  Clark,  408;  Crane  v.  Conklin,  Saxton,  346- 
Morrison  I'.  McLeod,  2Dev.  &  Pat  Ch.  221 ;  Hutchinson  v.  Tindal,  2  Green's 
Ch.  357 ;  Cruise  v.  Christopher,  5  Dana,  181  ;  French  v.  French,  8  Ohio 
214  ;  Galloway  v.  Witherspoon,  5  Ireil.  Eq.  128  ;  Phillips  v.  Moore,  11  Mo. 
600. 

Habitual  drunkenness,  in  the  absence  of  undue  advantage,  is  not  suffi- 
cient ground  for  setting  aside  an  iustrument.  Reinicker  v.  Smith  2  H.  & 
J.  421. 

t  White  V.  Cox,  3  Hey.  79  ;  Belcher  v.  Belcher,  10  Terg.  121  ;  Hotchkisa 
e.  Fortson,  7  Yerg.  67  ;  Maxwell  v.  Pettinger,  2  Green's  Ch.  150  ;  Hodman  r. 
Gilley,  Saxton,  320 ;  Wliitc.ddes  v.  Greenlee,  2  Dev.  Ch.  152 ;  Griffith  v. 
Frederick  Co.  Bank,  6  G.  &  J.  424 ;  Dunn  v.  Amoss,  14  Wis.  lOG. 


148  FRAUD  PRESUMED. 

on  his  part  tlie  other  party  believed  him  to  be  of  age.*  But  if 
an  infant  by  a  false  and  fraudulent  representation  that  he  is  of 
full  age  induces  a  man  to  enter  into  a  contract  with  him,  he  is 
bound  in  equity,'^  although  he  is  not  liable  at  law.^  *  Infancy 
is  not  in  equity  an  excuse  for  fraud.  An  infant  who  is  old 
and  cunning  enough  to  contrive  or  carry  on  a  fraud  is  bound 
in  the  same  manner  as  if  he  were  an  adult.^  It  is  not  neces- 
sary that  he  should  actively  encourage  fraud.  It  is  enough  if 
he  be  privy  to  it.  If  an  infant  knowing  his  rights  stands  by 
and  seeing  another  in  treaty  for  the  purchase  of  his  estate  gives 
no  notice  of  his  title,  he  will  not  be  permitted  afterwards  to 
avoid  the  purchase.^  f  An  infant  cannot  be  allo.ved  by  a 
court  of  equity  to  take  advantage  of  his  own  fraud.^  Where 
an  infant  had  obtained  from  a  creditor  of  his  wife  two  promis- 
sory notes,  in  which  he  was  indebted  to  him  before  marriage, 
on  giving  his  bond  to  the  creditor,  he  was  ordered  to  give 
back  the  notes  on  his  pleading  infancy  when  sued  on  the 
bond.' 

At  law  a  married  woman  is  under  an  absolute  incapacity  to 
bind  herself  by  any  engagement.  Her  separate  existence  is 
not  contemplated,  but  is  merged  by  the  coverture  in  that  of 
the  husband.     But  in  equity  the  case  is  wholly  different.     Her 

>  Stikeman  v.  Dawson,  1  Dcg.  &  Sm.  Fairhnrst,   9    Exch.   422 ;    Bartlett  v. 

105.  Wells,  1  B.  <fe  S.  836. 

«  Cory   V.    Gertckcn,    2   Madd.  40;  MVatts  »j.  Cresswell,  9  Vin.  Ab.  415 : 

Wri"-ht   )'.  Snowe,  2  Deg.  &   Sm.  321  ;  Evroy  v.  Micholas,  2   Eq.  Ca.  Ab.  489; 

Ex-partc   Unity   Bank,    3   D.  <fe   J.  63 ;  Arnot  v.   Hiscoe,    1   Ve-^.  95  ;  j9t'j- Lord 

Ilanuiih    r.    Ilodgson,     30    Beav.    23.  Ilardwicke,  Beckett  v.  Cordley,  1    Bro. 

("omp.  Ex-parte  Taylor,  8  D.  M.  tfe  G.  C.  C.  358  ;  but  see  Saunderson  v.  Marr, 

254  ;  isclson  v.  tttocker,  4  D.  &  J.  45S ;  1  II.  Bl.  75. 

but  see  Bartlett  v.   Wells,  1  B.  <fe   S.  ^  Savage  v.  Foster,  9  Mod.  37. 

836.  *  Clarke  v.  Cobley,  2  Cox,  173. 

»  Johnson  v.  Pye,  1   Sid.  258,  1  Keb.  '  lb.     See  Jones  V  Kearney,  1  Dr.  & 

913  i  Liverpool  Adelphi  Association  v.  War.  166. 


*  Brown  v.  McCune,  5  Sandf.  234;  Conroe  v.  Birdsall,  1  Johns.  127; 
Burlcy  v.  Russell,  10  K  11.  181 ;  Stooltbos  v.  Jenkins,  12  S.  &  R.  399. 

t  Hunter  v.  Foster,  4  Humph.  211 ;  Hall  v.  Timmons,  2  Rich.  Eq.  120; 
Whi'.tington  v.  Wright,  9  Geo.  23;  Barbara  v.  Tuberville,  1  Swan,  437. 


FRAUD  PRESUMED.  149 

separate  existence,  botli  as  regards  her  liabilities  and  her 
rights,  is  achnowledged  in  equity  to  the  extent  of  the  property 
which  she  enjoys  for  her  separate  use.  In  respect  of  such 
property  she  is  capable  of  disposition  and  of  doing  other  acts, 
as  if  she  were  difeme  sole}  In  respect  of  property  not  settled 
to  her  separate  use,  a  married  woman  cannot  bind  herself  in 
equity  in  matter  of  contract  any  more  than  she  can  at  law,  but 
CO  vert  ui-e  is  no  excuse  in  equity  for  a  fraud,^*     The  acquies- 

'  Murray  v.  Barlee,  3  M.  &  K.  220  ;  "  Savage  v.  Foster,  9  Mod.  37  ;  Evana 

Vaughan    v.    Vanderstegcn,    2    Drew.  v.    iJicknell,    6    Ves.    181;    per    Lord 

379 ;   Johnson  v.  Gallagher,  3  D.  F.  &  Eklon,    Vaughaa    a.    Vauderstegen,   2 

J.  494.  Drew.  379. 


*  Sexton  ».  Wheaton,  8  Wheat.  229  :  Hunter  v.  Foster,  4  Humph.  211  : 
Cravens  v.  Booth,  8  Tex.  243 ;  Bailey  v.  Trammel,  27  Tex.  317 ;  Bern  ». 
Heath,  6  How.  (Miss.)  288 ;  Couch  v.  Sutton,  1  Grant,  114. 

A  married  vpoman  can  not  be  made  personally  liable  for  a  fraud  com- 
mitted by  her,  even  in  respect  to  the  sale  of  her  sejoarate  estate.  Curd  v. 
Docld,  6  Bush,  G81. 

The  contract  of  a  married  woman  is  not  made  valid  by  the  fact  that 
she  represented  herself  to  be  single  at  the  time  she  gave  it,  and  thereby 
obtained  the  consideration  upon  which  it  was  given.  Keen  v.  Coleman, 
39  Penn.  299. 

An  action  will  not  lie  against  a  husband  and  his  wife  for  her  false 
representation  that  she  was  a.  feme  sole  at  the  time  of  executing  a  contract, 
and  obtaining  the  consideration  therefor.  Keen  v.  Hartman,  48  Penn. 
497. 

Although  a  married  woman  may  know  that  her  husband  is  obtaining 
credit  on  the  faith  of  her  property,  she  will  not  be  made  responsible  be- 
cause of  her  silence.  Bank  of  United  States  v.  Lee,  13  Pet.  107  ;  Hunter  v. 
Foster,  4  Humph.  211. 

A  married  woman  is  not  estopped  from  asserting  her  claim  to  property 
on  account  of  a  fraud  committed  by  her  husband,  unless  it  is  further 
shown  that  she  participated  in  his  deceitful  conduct.  Galling  v.  Rodman, 
6  Ind.  289. 

The  doctrine  of  estoppel  by  mere  omission  to  assert  one's  rights  does 
not  apply  to  the  wife  when  her  husband  makes  an  unauthorized  use  of 
her  property  in  her  presence.  Drake  v.  Glover,  80  Ala.  382;  Mcintosh  ». 
Smith,  2  La.  An.  756 ;  Palmer  v.  Cross,  1  Smed.  &  Mar.  48. 

Positive  acts  of  encouragement  that  sometimes  operate  to  estop  one 
sui  generis,  will  not  aifect  one  under  a  legal  disability.  Gliddcn  ».  Strip- 
pier,  52  Penn.  400. 


150  FRAUD  PRESUMED. 

cence  liowever  of  a  married  woman  in  a  transaction  will  not 
bind  her,  if  the  person  with  whom  the  transaction  was  entered 
into  knew  that  she  was  a  married  woman.*  * 

The  principle  which  vitiates  a  contract  with  an  incapaci- 
tated person  has  been  extended  in  equity  to  cases  where  from 
the  peculiar  relation  which  subsists  between  the  parties,  or 
from  the  influence  which  the  one  party  has  acquired  over  the 
other,  the  freedom  of  action  which  is  essential  to  the  validity 
of  all  transactions  is  overcome,  and  the  equal  footing  on  which 
parties  to  a  transaction  should  stand  is  destroyed.'' 

If  the  relation  between  the  parties  is  one  of  a  fiduciary  na- 
ture, transactions  between  them  are  watched  by  a  court  of 
equity  with  more  than  ordinary  jealousy.  The  duty  of  a  per- 
son who  fills  a  fiduciary  position  being  to  protect  the  interests 
which  are  confided  to  his  care,  he  may  not  avail  himself  of  the 
influence  which  his  position  gives  him  for  the  purposes  of  his 
own  benefit,  and  to  the  prejudice  of  those  interests  which  he  is 
bound  to  protect.  It  is  a  rule  of  equity  that  no  man  can  be 
permitted  to  take  a  benefit  where  he  has  a  duty  to  perform 
which  is  inconsistent  with  his  acceptance  of  the  benefit.* 
"Wherever  two  persons  stand  in  such  a  relation  that,  while  it 
continues,  confidence  is  necessarily  reposed  by  the  one  and  the 
influence  which  naturally  grows  out  of  that  confidence  is  pos- 
sessed by  the  other,  and  this  confidence  is  abused  or  the  influ- 
ence is  exerted  to  obtain  an  advantage  at  the  expense  of  the 
confiding  party,  the  person  so  availing  himself  of  his  position 
will  not  be  permitted  to  retain  the  advantage,  although  tho 


*  Nicholl  V.  Jone3,  36  L.  J.  Ch.  554.  Longmate  v.  Ledger,  2  Giff.  157;  Bar- 

"  See  C'asborne  v.  Barsham,  2  Beav.       reiCv.  Hartle}-,  L.  R   2  Eq.  789. 
•76-    Edwards   v.  Meyrick,   2  Ha,   60;  =  Robinson  V  Pett,  3  P.  Wms.  249. 


*  Wilks  V.  Fitzpatrick,  1  Humpli,  54 ;  Glidden  v.  Strippler,  53  Penn. 
400. 


FEAUB  PKESUMED.  151 

transaction  could  not  have  been  impeached  if  no  such  confiden- 
tial relation  had  subsisted.* 

The  rule  of  equity  which  prohibits  a  man,  who  fills  a 
position  of  a  fiduciary  character,  from  taking  a  benefit  from 
the  person  towards  whom  he  stands  in  such  a  relation,  stands 
upon  a  motive  of  general  public  policy,  irrespective  of  the 
particular  circumstances  of  the  case.  The  rule  is  founded  on 
considerations  as  to  the  diflficulty  which  must,  from  the  con- 
dition of  the  parties,  generally  exist,  of  obtaining  positive 
evidence  as  to  the  fairness  of  transactions  which  are  peculiarly 
open  to  fraud  and  undue  influence.  The  policy  of  the  rule  is 
to  shut  the  door  against  temptation.^ 

The  rule  does  not,  however,  go  the  length  of  avoiding  all 
transactions  between  parties  standing  in  a  fiduciary  relation, 
and  those  toward  whom  they  stand  in  such  relation.  All  that 
a  court  of  equity  requires  is,  that  the  confidence  which  has 
been  reposed  be  not  betrayed.  A  transaction  between  them 
will  be  supported,  if  it  can  be  shown  to  the  satisfaction  of  the 
court  that  the  parties  were,  notwithstanding  the  relation, 
substantially  at  arms'  length  and  on  an  equal  footing,  and  that 
nothing  has  happened  which  might  not  have  happened,  had 
no  such  relation  existed.  The  burden  of  proof  lies,  in  all 
cases,  upon  the  party  who  fills  the  position  of  active  con- 
fidence, to  show  that  the  transaction  has  been  fair.  If  it  can 
be  shown  to  the  satisfaction  of  the  court  that  the  other  party 
had  competent  and  disinterested  or  independent  advice,  or 
ihat  he  performed  the  act  or  entered  into  the  transaction 
voluntarily,  deliberately  and  advisedly,  knowing  its  nature 
and  efiect,  and  that  his  consent  was  not  obtained  by  reason  of 


•  Tate  V.    Williamson,  L.  R.  2  Ch.  thorn,  1  V.  A  C.  C.  C.  342 ;  Van  Epps 

App.  01.  "•  Van   Eiii)s,    9   Paige  (Amer.),  241 ; 

^  Ilcriie  V.  Meeres,  1  Vorn.  405 ;  Ay-  Aberdeen    Railway   Co.   v.   Jilaikie,    1 

liflfe  V.  Murray,  2  Atk.  50  ;  Itobinson  ?».  Macq.  461. 
Pelt,  3  P.  Wms.  25 i  ;  Benson  v.  Hea- 


152  FRAUD  PRESUMED. 

the  power  of  influence  to  wliicli  the  relation  gave  rise,  the 
transaction  will  be  supported.^  A  man  standing  in  a  fiduciary 
relation,  if  dealing  with  the  confiding  party,  is  bound  to 
communicate  all  the  information  he  has  acquired  respecting 
the  property,  the  subject  of  the  transaction,  which  it  was 
material  for  him  to  know,  in  order  to  enable  him  to  judge  of 
the  value  of  the  property.'' 

The  principles  which  govern  the  case  of  dealings  of 
persons  standing  in  a  fiduciary  relation  apply  to  the  case  of 
persons  who  clothe  themselves  with  a  character  which  brings 
them  within  the  range  of  the  principle,^  or  who  take  instru- 
ments, securities  or  moneys  with  notice  that  they  have  been 
obtained  by  a  person  filling  a  position  of  a  fiduciary  character 
from  a  person  towards  whom  he  stands  in  such  relation.* 

In  judging  of  the  validity  of  transactions  between  persons 
standing  in  a  confidential  relation  to  each  other,  the  material 
point  to  be  considered  is,  whether  the  person  conferring  a 
benefit  had  competent  and  independent  advice.  The  age  or 
capacity  of  the  person  conferring  the  benefit,  and  the  nature 
of  the  benefit,  are  of  little  importance  in  such  cases.  They 
are  important  only  where  no  such  confidential  relation  exists." 
The  general  principle,  however,  as  to  the  incapacity  of  a 
person  who  stands  in  a  fiduciary  relation  to  take  a  benefit 
from  the  party  towards  whom  he  stands  in  such  a  relation, 


»  Gibson  «.  Jeyes.  6  Ves.  278;  Gid-  252;  Tate  t).  "WiHiamson,   L.  R.  2  Ch. 

dings  V.  Giddiiigs,  3  Kuss.  241 ;  Naylor  App.  55. 

V.  Winch,  2  L.  J.  Ch.  135,  1  L.  J.  Ch.  6;  ^  Ih. 

Hunter  v.  Atkins,  3  M.  «fe  K.  113;  Cas-  '  Tate  v.  "Williamson,  L.  R.  2  Ch.  App. 

borne  v.  Barsham,  2  Beav.  79 ;  Tanner  55. 

V.  Elworthy,  4  Beav.  487  ;  Greenlaw  v.  *  Ardglasse  v.  Pitt,  1  Vern.  238  ;  Mo- 

King,  10  L.  J.  Ch.  129;    Edwards  v.  lony  i;.  Kernan,  2  Dr,  <fe  War.  31 ;  Espey 

Meyrick,  2  Ha.  CO  ;  Waters  v.  Bailey,  2  v.  Lake,  10  Ha.  260 ;  Bardoe  v.  Dawson, 

Y.  &  C.  C.  C.  219  ;  Knio-ht  v.  Marjori-  34  Beav.  603  ;  Rolfe  v.  Gregory,  34  L. 

banks,    2  H.   >-fe   Tw.   316;    Billage   v.  J.  Ch.  275  ;  "VYyse  v.  Lambert,   16   Ir. 

Southee,  9  Ha.  540;  Ilogliton  v.  Hogh-  Ch.  379.     Comp.  Rhodes  v.  Bate,  L  R. 

ton,  15  Beav.  288;   Allfrey  v.  Allfrey,  1  1  Ch.  App.  260. 

Mac.  &.G.  99 ;  Smith  v.  Kay,  7  H.  L.  ^  Rhodes  v.  Bate,  L,  R.  1  Ch.  App. 

750;  llliudes  v.  Bate,  L.  K.  1  Ch.  App.  252. 


FRAUD  PRESUMED.  153 

admits  of  some  limitation.  A  mere  trifling  gift  to  a  person 
standing  in  a  confidential  relation,  or  a  mere  trifling  liability 
incurred  in  favor  of  such  person,  cannot  stand  in  tlie  same 
position  as  a  gift  of  a  man's  whole  property,  or  a  liability 
involving  it,  would  stand  in.  In  such  cases  the  court  will 
not  interfere  to  set  them  aside  upon  the  mere  fact  of  a  con- 
fidential relation,  and  the  absence  of  proof  of  competent  and 
independent  advice.  The  court  requires,  before  it  will  undo 
the  benefit  conferred,  some  proof  not  merely  of  influence 
derived  from  the  relation,  but  of  mala  fides,  or  of  undue  or 
unfair  exercise  of  the  influence.* 

After  the  termination  of  the  fiduciary  relation,  it  is  open 
to  the  parties  to  deal  on  the  same  terms  as  strangers  ; '  but  if 
a  relation  of  confidence  be  once  established,  either  some 
positive  act  or  some  complete  act  of  abandonment  must  be 
shown  in  order  to  determine  it.  The  mere  fact  that  the 
relation  is  not  called  into  existence  is  not  sufficient  of  itself 
to  determine  it.^  If  the  confidential  relation  between  the 
parties  has  not  terminated  at  the  commencement  of  the 
negotiation,  the  principles  which  govern  the  case  of  dealings 
between  parties  standing  in  a  fiduciary  relation  continue  to 
operate.*  Although,  indeed,  the  confidential  employment 
may  have  ceased,  the  disability  will  continue  so  long  as  the 
reasons  on  which  it  is  founded  continue  to  operate.'  A  man, 
for  instance,  who  has  in  the  course  of  a  fiduciary  emj^loyment 
acquired  some  peculiar  knowledge  as  to  the  property  of  his 
employer,  cannot,  after  the  cessation  of  the  relation,  use  the 
knowledge  so  acquired  for  his  own  benefit,  and  to  the 
prejudice   of  the   other.''     Bat   although  a  person  may  have 

» Rhodes  v.  Bate,  L.  R.  1  Ch.  App.  252.  *  Tate  v.  Williamson,  L.  R.  2  Ch  App 

SeeBeasley*;.  Magrnth,  2Seh.<fcLef.  35.  65, 

'  Tate  v'.  Williamson,  L.  R  2  Ch.  App.  "  Carter  v.  Palmer,  8  CI.  &  Fia.  657. 

65 ;  see  Deaden  v.  King,  9  Ha.  5:52.  "  lb. ;  Uolmaa  v.  LovQes,  4  D.  M  <fc 

'  Rhodea  v.  Bate,  L.  R.   1  Ch.  App.  G.  270. 
260. 

11 


154  FKAUD  PRESUIMED. 

been  employed  or  consulted  on  one  occasion,  tliis  will  not  of 
itself  constitute  a  confidential  relation  in  respect  of  a  subse- 
quent transaction,  occurring  at  a  future  and  somewhat  distant 
time.* 

A  common  instance  of  the  application  of  the  rule  that  a 
man  who  fills  a  position  of  a  fiduciary  character  cannot  derive 
a  benefit  from  the  person  towards  whom  he  stands  in  such 
relation,  is  in  the  case  of  actual  trustees.  It  is  the  duty  of 
a  trustee  to  use  his  best  exertions  for  the  advantage  of  the 
cestui  que  trust.  He  may  not  place  himself  in  a  situation 
in  which  his  interests  will  come  into  conflict  with  that  which 
his  duty  requires  him  to  do.  Any  personal  benefit  which 
he  may  gain  by  availing  himself  of  his  fiduciary  character 
must  be  acquired  by  a  dereliction  of  duty,  and  will  enure  for 
the  benefit  of  the  trust  estate.^  *     There  is  no  more  sacred 


'  Rhodes  v.  Bate,  L.  R.   1  Ch.  App.  86.     A  lease  obtained  by  a  trnstee  or 

259.  executor  in  his  own  name,  even  in  the 

'^  Ilolt  V.  Holt,  1   Ch.  Ca.  190;  Ex^  absence  of  fraud,  and  upon  the  refusal 

parte  Lacey,  6  Ves.  625 ;  Ex-parte  James,  of  the  lessor  to  grant  a  new  lease  to  the 

8  Ves.  337,  344  ;  D'Albiac  v.  D'Albiac,  cestui  que  trust,  shaW  be  held  uj)on  trust 

16  Ves.  123  ;  Hamilton  v.  Wright,  9  CI.  for  the  person  entitled  to  the  old  lease. 

<fe  Fin.  Ill;  Broughton  i'.  Broughton,  5  Keech   v.    Sandford,  Sel.  Ca.  Ch.    61; 

D.  M.  &  G.  164  ;  Vaughton  v.  Koble,  30  White  v.  Tudor,  L.  C.  vol.  I,  p.  40. 
Beav.  34;  Crosskill  v.  Bower,  32  Beav. 


*  Barney  ».  Sannders,  16  How.  535;  Mitchell  v.  Moore,  6  Bush,  659; 
Van  Epps  v.  Van  Epps,  9  Paige,  237  ;  Brinkerhof  v.  Brown,  4  Johns.  Ch. 
693;  Matter  of  Oaklcj',  2  Edw.  Ch.  478  ;  Myers  «.  Myers,  2  McCord's  Ch. 
214 ;  Jamison  v.  Glascock,  29  Me.  191. 

All  transactions  relating  to  the  trust  estate  enure  to  the  benefit  of  the 
cestui  que  trust.  Freeman  v.  Harwood,  49  Me.  195  ;  Jewett  v.  Miller,  10 
N.  Y.  402;  Brantly  v.  Key,  5  Jones'  Eq.  332  ;  Paige  v.  Naglee,  6  Cal.  241 ; 
Lennox  v.  Noterebe,  1  Hemp.  251 ;  Spindler  v.  Atkinson,  3  Md.  409  ;  Bill 
V.  Webb,  2  Gill,  163  ;  Callis  v.  Eidout,  7  G.  &  J.  1 ;  Crutchfield  v.  Haynes, 
14  Ala.  49  ;  Green  v.  Winter,  1  Johns.  Ch.  27 ;  Hauley  v.  Marcius,  7  Johns. 
Ch.  174 ;  Keaton  «.  Cobbs,  1  Dev,  Ch.  439 ;  Boyd  v.  Hawkins,  2  Dev.  Ch. 
195  ;  M'Clanahan  v.  Henderson,  2  A.  K.  Marsh.  388;  Chapin  v.  Weed,  1 
Clarke,  464 ;  Slade  v.  Van  Vechten,  11  Paige,  21. 

A  purchase  of  the  trust  property  is  valid  as  to  all  persons  except  the 
cestui  que  trust.    Wilson  t).  Troup,  2  Cow.  195  ;  Painter  v.  Henderson,  7 


FRAUD  PRESUMED.  155 

rule  of  equity  than  that  a  trustee  cannot  so  execute  a  trust  as 


Barr,  48  ;  McKinley  «.  Irvine,  13  Ala.  631 ;  Baldwin  v.  Allison,  4  Minn.  25 ; 
Rice  V.  Clighorn,  20  Ind.  80, 

A  trustee  can  not  avoid  his  purchase  when  the  cestui  que  trust  is  satis- 
fied. He  can  only  file  a  bill  calling  upon  the  cestui  que  trust  to  confirm  or 
avoid  the  sale.  McClure  v.  Miller,  Bailey's  Ch.  107  ;  Williams  v.  ]\Iarshall. 
4  G.  &  J.  376 ;  Huff  v.  Earl,  3  Ind.  306. 

The  option  of  the  cestui  que  trust  to  follow  the  trust  fund  into  a  new 
investment,  or  to  hold  the  trustee  personally  liable  for  a  breach  of  the 
trust,  belongs  to  him  exclusively,  and  it  is  not  in  the  power  of  the  trustee 
to  deprive  him  of  it  by  a  repurchase  of  the  trust  property.  Oliver  v.  Piatt, 
3  How.  333. 

A  sale  of  the  trust  property  to  a  corporation,  in  which  the  trustee  has 
a  large  interest,  is  voidable.     Robbing  v.  Butler,  24  111.  387. 

By  claiming  the  proceeds,  the  cestui  que  trust  confirms  the  sale.  Pierce 
p.  Nesbit,  1  Hill's  Ch.  445. 

In  considering  the  capacity  of  a  trustee  to  purchase  the  property  of 
his  cestui  que  trust,  the  authorities  may  be  regarded  under  two  classifica- 
tions :  Ist.  Where  a  trustee  buys  or  contracts  with  himself,  or  several 
trustees  of  which  he  is  one,  or  a  board  of  trustees.  2d.  Where  the  deal- 
ing of  the  trustee  is  with  a  ceslui  que  trust,  who  is  st/i  juris  and  competent 
to  deal  independently  of  the  trustee  in  respect  to  the  trust  estate.  The 
distinction  between  the  two  classes  of  cases  consists  in  this :  that,  in  the 
first,  the  contract  is  voidable  J^bsolutely  at  the  instance  of  the  cestui  que 
trust,  without  regard  to  its  fairness;  whilst,  in  the  second,  although  the 
presumptions  of  law  are  against  the  contract,  yet  permission  is  given  to 
the  trustee  to  show  the  perfect  hond  Jidcs  of  the  transaction,  and  circum- 
stances relieving  it  from  the  censure  of  the  law.  This  is  a  distinction 
recognized  generally,  but  not  univer^allJ^  Some  of  the  cases  insist,  with 
great  earnestness,  that  the  goveming  principle  ought  to  be,  and  is,  the 
same  in  both  classes.  Hoffman  v.  Steam  Coal  Co.  v.  Cumberland  Coal  & 
Iron  Co.  16  Md.  456  ;  Cumberland  Coal  Co.  v.  Sherman,  30  Barb.  533. 

The  doctrine  does  not  apply  to  the  relation  of  principal  and  surety. 
Blow  -v.  Maynard,  2  Leigh,  29. 

While,  in  cases  of  pure  trust,  where  exclusive  jurisdiction  is  in  equity, 
resort  must  be  had  to  that  tribunal  for  relief;  and  sometimes,  in  cases  of 
quasi  trust,  that  court  will  grant  relief  where  there  are  special  circum- 
stances requiring  it ;  yet,  where  the  relation  is  a  legal  relation,  and  its 
rights  and  duties  are  defined  by  law,  the  remedies  for  the  violation  of 
sucli  duties  are  ordinarily  at  law.  McL  Fire  Ins.  Co.  v.  Dalrymple,  25  Md. 
242. 


156  FRAUD  PEESUMED. 

to  have  the  least  benefit  from  it  himself.*  *  The  restraint  on 
any  personal  benefit  to  the  trustee  is  not  confined  to  his 
dealings  with  the  estate,  but  extends  to  remuneration  for 
services,  and  prevents  him  from  receiving  anything  beyond 
the  payment  of  his  expenses,  unless  there  be  an  express 
stipulation  to  the  contrary.^  There  may  be  cases  in  which 
the  court  will  establish  an  agreement  made  with  a  trustee 
for  a  certain  allowance  beyond  the  term  of  his  trust,  but  the 
court  will  be  extremely  cautious  and  wary  in  doing  so.  The 
court  looks  upon  trusts  as  honorary,  and  a  burden  on  the 
honor  and  conscience  of  the  party,  and  not  as  taken  with 
mercenary  motives.^  f 

But  there  is  no  rule  which  incapacitates  a  trustee  from 
dealing  with  the  cestui  que  trust  in  respect  of  the  trust  estate. 
A  trustee  for  sale  may  purchase  the  trust  estate,  if  the  cestui 
que  trust  fully  and  clearly  understands  with  whom  he  is  deal- 
ing, and  makes  no  objection  to  the  transaction,  and  the  trustee 
fairly  and  honestly  discloses  all  that  he  knows  respecting  the 
property,  and  gives  a  just  and  fair  price,  and  does  not  seek  to 


» Forbes  V.  Ross,  2  Cox.  116.  v.  Darby,  28  Beav.  325  ;  CrossMU  v. 

"  Robinson  v.  Rett,  3  P.  Wms.  249;  Bower,  32  Beav.  86;  Barrett  v.  Hart- 
Moore  V.  Frowd,  3  M.  <fe  C.  46  ;  Bain-  ley,  L.  R.  2  Eq.  789. 
brigge  v.  Blair,  8  Beav.  588  ;  Broughton  ^  Ayliffe  v.  Murray,  2  Atk.  59. 
V.  Br'ougliton,  5  D.  M.  &  G.  IGO ;  Harbin 


*  Michoud  «.  Girocl,  4  How.  503 ;  Bank  of  Orleans  v.  Torrey,  7  Hill,  260 ; 
Conyer  v.  Ring,  11  Barb.  356 ;  Murray  v.  Vanderbilt,  39  Barb.  140 ;  Sloo  v. 
Law,  3  Blatch.  459. 

t  A  different  rule  prevails  generally,  if  not  universally,  in  this  country. 
Here  it  is  considered  just  and  reasonable  that  a  trustee  should  receive  a 
fair  compensation  for  his  services,  and,  in  most  cases,  it  is  gauged  by  a 
certain  percentage  on  the  amount  of  the  estate.  But  a  trustee  who  has- 
acted  fraudulently  and  dishonestly  is  not  entitled  to  the  same  compensa- 
tion as  he  who  has  acted  uprightly ;  and  there  may  be  cases  where  negli- 
gence and  want  of  care  may  amount  to  want  of  good  faith.  Barney  «. 
Saunders,  16  How.  535. 


FRAUD  PRESUMED.  157 

secure  surreptitiously  any  advantage  for  himself.^*  But  the 
transaction  becomes  impeacliable,  if  there  is  any  secret  or 
underhand  dealing  on  the  part  of  the  trustee.  However  fair 
it  may  be  in  other  respects,  the  transaction  cannot  be  suj)- 
ported,  if  the  cestui  que  trust  does  not  clearly  and  distinctly 
understand  that  he  is  dealing  with  the  trustee.  A  trustee 
cannot,  under  any  circumstances,  be  allowed  to  deal  with 
himself  on  behalf  of  the  cestui  que  trust  surreptitiously  and 
without  his  knowledge  and  assent.  It  is  immaterial  that  he 
may  take  no  advantage  from  the  bargain.  It  may  be  that  the 
terms  on  which  he  attempts  to  deal  with  the  trust  estate  are  as 
good  as  could  have  been  obtained  from  any  other  quarter. 
They  may  even  be  better,  but  so  inflexible  is  the  rule,  that  no 
inquiry  can  be  made  as  to  the  fairness  or  unfairness  of  the  trans- 
action.    It  is  enough  that  the  act  has  a  tendency  to  interfere 

'  Ayliffe  v.  Murray,  2  Atk  59;  Royal,  12  Vcs.  355;  Downes  ?j.  Graze- 
Clarke  V.  Swaile,  2  ed.  134;  Ex-parte  brook,  3  Mer.  208;  Kiii<,^ht  v.  Marjori- 
Lacey,  (1  Ves.  626;  Ex-parte  James,  8  banks,  2  Mac.  &  G.  10;  re  M'Kenna,  18 
Ves.  348;  Coles  v.  Trecothick,  9  Ves.  Ir.  Ch.  239;  Luff  >-.  Lord,  11  Jur,  N.  S. 
246;  Ex-parte  Benueit,  \0  Ncs.  381;  50;  Dover  y.  Buck,  «6.  580 
Randall  v.  Errington,  ib.  422 ;  Morse  v. 


*  Ricbardson  v.  Spencer,  18  B.  Mon.  450 ;  Sallee  v.  Chandler,  26  Mo. 
124;  Baxter  v.  Coston,  1  Busbee's  Eq.  262;  Kennedy  w.  Kennedy,  2  Ala. 
571 ;  Field  v.  Arrowsiuitb,  3  Humph  442 ;  Villiues  v.  Norfleet,  2  Dev.  Ch. 
167;  Marshall  v.  Stephens,  8  Humph.  159;  Biyan  v.  Dmican,  11  Geo.  67. 

A  trustee  cannot  become  a  purchaser  of  the  trust  estate.  He  cannot 
be  both  vendor  and  vendee.  He  cannot  represent  in  himself  two  opposite 
and  conflicting  interests.  Wormley  v.  Wormley,  8  Wheat.  421 ;  Caldwell 
V.  Taggart,  4  Pet.  190;  Hunt  v.  Bass.  2  Dev.  Eq.  292;  Quarles  v.  Lacey,  4 
Munf  251 ;  De  Cater  v.  Lee  Roy  de  Cliaumont,  3  Paige,  178 ;  Child  v. 
Brener,  4  Paige,  309 ;  Campbell  v.  Johnson,  1  Sandf  Ch.  148 ;  Johnson  v. 
Bennett,  89  Barb.  237 ;  Charles  v.  Dubose,  29  Ala.  307  ;  Mason  v.  Martin,  4 
Md.  124;  Wasson  v.  English,  13  Md.  176;  Armstrong  v.  Campbell,  3  Yerg. 
201 ;  McGinn  v.  Shaeffer,  7  Watts,  412  ;  Mattheus  v.  Dezaud,  3  Dessau.  24; 
Thorp  V.  McCullum,  1  Gilman,  614. 

A  sale  by  a  trustee  to  his  cestui  que  trust  stands  on  the  same  footing  as 
a  purchase  by  a  trustee  from  his  cestui  que  trust.  McCarty  v.  Bee,  1 
McCord's  Ch.  383. 


158  FBAUD  PRESUMED. 

witli  the  duty  of  protecting  the  trust  estate  wliicli  the  trustee 
has  taken  upon  himself  to  perform.  The  policy  of  the  rule  is 
to  shut  the  door  against  temptation.  It  makes  no  matter 
whether  the  transaction  relates  to  real  estate,  or  personalty,  or 
mercantile  matters,  for  the  disability  arises  not  from  the  sub- 
ject matter,  but  from  the  obligation  imder  which  a  trustee 
lies  to  do  his  utmost  for  the  cestui  que  trust}  *  It  makes  no 
difference  in  the  application  of  the  principle  that  the  sale  was 
by  public  auction,^  f  or  that  the  purchase  was  made  through 
another  person,'  X  ^^  ^^^^  *^^  purchase  vas  made  from  a  co- 
trustee,^ §  or  that  the  trustee  may  have  purchased  as  agent  for 
another  person,^  I  or  that  a   third  person   may,  by  previous 

*  Fox  V.  Macreth,  2  Bro.  C.  C.  400,  463 ;  Franks  v.  BoUans,  37  L.  J.  Ch. 

2  Cox,  320,  4  Bro.  P.  C.  258 ;  Ex-parte  155. 

Lacey.  6  Ves.  627;   Ex-parte  James,  8  "Campbell  v.  "Walker,  r>  Ves.  678; 

Ves.   348;  Ex-parte  Bennett,   10  Ves.  Ex-parte  James,  8  Ves.  348;   Ex-parte 


394;    Rmdill    v.   Errington,    ib.    423 
Att.-Gen.  v.  Earl  of  Clarendon,  1 7  Ves, 
500;   Gregory  v.  Gregory',  Coop.  201 
Woodhouse  v.  Meredith,  1  J.  <fe  W.  222 


Bennett,  10  Ves.  393;  Sanderson  v. 
W^alker,  13  Ves.  602;  York  Buildings 
Co.  V.  M'Kenzie,  8  Bro.  P.  C.  42,  3  Pat. 
Sc.  Ap.  378 ;  Bailey  v.  Watkins,  cit.  6 


Baker  i\  Carter.  1  Y.  &  C.  250;  Grover  Bligh,  273;   Downes  v.   Grazebrook,  3 

t).  Huuell,  3  Ptuss.  428;  Bailey  j^.  Wat-  Mer.    207;   Grover  v.  Hngell,  3  Russ. 

kins,  eit.  6  Bligh,  273 ;  re  Bloye's  Trust,  428 ;  Lawrence  v.  Galsworthy,  3  Jur.  N. 

1  Mac.  &  G.  490.  afFd.  as  Lewis  v.  Hill-  S.  1049;  Adams  v.  Sworder,  2  D.  J.  & 

man,  3  H.  L.   607  ;  Knight  v.  Marjori-  S.  44. 

banks,  2  Mac.  <fe  G.    12;  Hamilton  v.  '  Sanderson  v.  Walker,  13  Ves.  602 ; 

Wright,  9  CI.    &  Fin.    Ill;    Ingle   v.  Adams  d.  Sworder,  2  D.  J.  &  S.  44, 
Ricirards,   6  Jur.  X.  S.  1178;  Popham  ^  Hall  v.   Xoyes,  cit.  3  Ves.  748,  3 

V.  Exham,   10  Ir.  Ch.  410;  Aberdeen  Bro.    C.    C.   483;    Whicbcote  v.   Law- 

Railwav  Co.  v.  Blaikie,  1   Macq.  461 ;  rence,  3  Ves.  740. 

Parkinson  v.   Hanbury,    2  D.  J.   &   S.  *  Ex-parte   Bennett,    10    Ves.    381, 

45u:   Ridley  v.   Ridley,   34  L.  J.  Ch.  400;  Gregory  v.  Gregory,  Coop.   201; 

Ex-parte  Grylls,  2  Dea.  &  Ch.  290. 


*  Michoud  V.  Girod,  4  How.  503;  Narcissa  ».  Wathan,  2  B.  Mod.  241 ; 
Ringgold  V.  Ringgold,  1  H.  «&  J.  11 ;  Schwartz  v.  Wendell,  Walk.  Ch.  2(37. 

t  Michoud  V.  Girod,  4  How.  503;  Davoe  v.  Fanning,  2  Johns.  Ch.  253; 
Bellamy  t.  Bellaray,  G  Fla.  62. 

X  ]\Iic-boud  V.  Girod,  4  How,  503;  Davoe  v.  Fanning,  2  Johns.  Ch.  252; 
Beeson  v.  Beeson,  9  Barr,  279  ;  Dorsey  v.  Dorsey,  3  H.  &  J.  410. 

§  Cumberland  Coal  Co.  v.  Sbciman,  30  Barb.  533;  Ringgold  t.  Ring- 
gold, 1  H.  &  J.  11. 

II  Hawley  v.  Cramer,  4  Cow.  717 ;  North  Balto  Btuldiug  Association  v, 
Caldvdl,  25  Md.  4i0. 


FRAUD  PRESUMED.  159 

arrangement  witli  the  trustee,  have  been  the  purchaser  in 
trust  for  the  separate  use  and  benefit  of  the  wife  of  the 
trustee.* 

The  application  of  the  principle  is,  however,  limited  to 
dealings  with  the  trust  estate.  In  all  matters  unconnected 
with  the  subject  of  the  trust,  the  parties  are  fully  competent 
with  each  other  as  strangers.^ 

Nor  will  the  principle  operate  after  the  relation  of  trustee 
and  cestui  que  trust  is  clearly  dissolved,  but  a  man  who  has 
been  a  trustee  cannot,  after  the  termination  of  the  relation,  be 
allowed  to  avail  himself  for  his  own  benefit,  and  to  the  preju- 
dice of  the  party  for  whom  he  has  been  trustee,  of  any  infor- 
mation which  he  may  have  acquired  during  the  existence  of 
the  relation.'  Subject  to  this  limitation,  a  man  who  has  acted 
in  a  fiduciary  character  may,  on  divesting  or  discharging  him- 
self of  the  trust,  purchase  the  property  in  respect  of  which  he 
has  filled  a  fiduciary  position.*  *  If  a  man  cannot  by  an  act 
of  his  own  discharge  himself  of  the  trust  so  as  to  enable  him 
to  purchase,  the  court  will,  under  particular  circumstances, 
divest  him  of  the  character  and  enable  him  to  purchase.''      If 

'Daroe  v.  Fannin"-,    2  Johns.   Ch.  than  that  the  transaction  takes  place 

(Amcr)   252."  °  '^^'f'^  the   consent  of  the  parties  bene- 

*  Ku'iffht  'v.  Marjoribanks,  2  Mac.  &  ficially  interested.     Ex-parte  James,  8 

G  12  "^  11    <fe  Tw  308.  Ves.  352;   Coles  v.  Trecothick,  9  Ves. 

'  '  Ex-parte  Lac'ey,  6  Ves.  627;  Coles  234,  246;  Morse  v.  Royal,  12  Ves.  373  ; 

V  Trecothick,  9  Ves.  246;  Ex-parle  Downes  v.  Grazebrook,  3  Mer.  208; 
Bennett,  10  Ves.  394;  IMorse  v.  Royal,  Chalmer  v.  Bradley,  1  J.  &  W.  68.  In 
12  Ves.  373.  See  Hamilton  «'.  Wright,  Austin  )'.  Chambers,  6  CI.  <fe  Y\n.  1, 
9  CI.  &  Finn.  Ill ;  Holman  v.  Loynes,  where  it  was  said  that  a  man  min-lit,on 
4D.'m.  &  G.  270.'  shaking  off  the  character  of  a  trustee, 

'*  Ex-p<irte  James,  8  Ves.  337;   San-  purchase  the  trust  estate,  the  solicitor 

ders-.n  v.  Walker,  13'Ves.  601 ;  Downes  was  not  employed  in  the  sale  by  his 

V  Grazei)rook,  s'  Mer.  200;  I'.arthole-  client,  and  was  himself  a  judgment 
mew  V.  Leech,  7  Watts  (Amcr.),  472.  creditor.  A  trustee  cannot  be  allowed 
See  Stacey  y. 'Elph.  1  M.  ct  K.  195;  to  purchase  the  trust  estate  by  his  re- 
Austin  V.  Chambers,  6  CI.  it  Fin.  1.  tirement  from  the  trust  with  that  ob- 
Theexjiression  "shaking  off"  the  char-  ject  in  view.  Spring  v.  Pride,  12  W. 
acter  of  trustee,  or  "dissolving  the  re-  R.  510. 

lation"  of  trustee,  used  in  some  of  the  "  Camphell  r.  Walker,  5  Ves.  681. 

cases,  does  not  seem  to  amount  to  more       See  Ex-parte  James,  8  Ves.  348 ;  San- 


*  Kearney  v.  Taylor,  15  IIow.  494;  Pries  v.  Evans,  26  Mo.  30. 


IGO  FRAUD  PRESUMED. 

the  trust  property  is  taken  entirely  out  of  a  man's  hands,  and 
all  his  authority  over  it  put  an  end  to  by  the  interposition  and 
act  of  law,  as  in  the  case  of  a  sale  by  execution,  there  is  no 
reason  why  he  should  not  be  able  to  purchase.  The  prin- 
ciple upon  which  a  trustee  is  debarred  from  purchasing  the 
trust  estate  does  not  apply  to  such  a  case.^  The  assignee  of 
an  insolvent  debtor,  for  instance,  may  purchase  the  debtor's 
estate  when  sold  by  the  sheriff.^  So  also  a  creditor  taking  out 
execution  may  purchase  the  property  upon  a  sale  by  the 
sheriff.^  But  a  man  standing  in  a  fiduciary  character  with 
respect  to  property  cannot  be  allowed  to  purchase  the  prop- 
erty at  a  judicial  sale,  unless  the  entire  responsibility  of 
obtaining  the  highest  price  has  been  taken  out  of  his  hands.* 
If  he  continues  under  any  duty  in  respect  of  the  subject- 
matter  of  the  sale,  he  is  incapacitated  from  purchasing.^  Nor 
will  the  transaction  be  allowed  to  stand,  if  there  appears  to 
have  been  any  unfairness  in  his  conduct  with  regard  to  the 
sale.' 

The  principle  which  affects  dealings  between  trustee  and 
cestui  que  trust  is  not  confined  to  trustees  properly  so  called, 
but  extends  to  other  persons  invested  with  a  like  fiduciary 

derson  v.  Walker,   13  Ves.  602;  Mul-  See  Hawley  i'.  Cramer,  4  Cow.  (Amer.), 

vany  t'.  Dillon,  1  Ba.  <fe  Be.  418;  Ex-  111.     Comp.  Lord  Cranstown  v.  John- 

parte   Jlarrison,    Buck,    1*7;    Ex-parte  stone,  3  Ves.  182,  5  Ves.  277. 

Ba"-e,  4  Madd.  460;  Anon.  2  Russ.  350;  ^  Van  Epps  v.  Van  Epps,  9  Paige's 

Ex-pnrte  Morland,  Mont.  &,  M.  76.  Ch.  (Amer.),  237;   Jewett  v.  Miller,  6 

'  Prevost   V.    Gratz,    Peters'    C.    C.  Seld.  (Amer.),  402.     See  York  Build. 

(Amer.),  378;  Fisk  v.  Sarber,  6  Watts  ings  Co.   v.   M'Kenzie.  3  Pat.  iSc.   Ap. 

&   Serg'.    (Amer.),   18.      See    Ex-parte  398  ;  i'.r-jo.(?-<e  Morland,  Mont,  tk  M.  76; 

Farleyr3  Dea.  and  Ch.  110;  Austin  v.  Ex-parte  Farley,  3  Dea.  &  Ch.  110. 

Chambers,   6  CI.  &  Fin.  1 ;  Beaden  v.  ^  Fisk  v.  Sarber,  6  Watts  &   Serg. 

King,  9  Ha.  499.     Comp.  York  Build-  (Amer.),    18.     See   Ex-parte    Morland, 

in"-s''co.   V.  M'Kenzie,  3  Pat.  Sc.  App.  Wont.  &  M.  76 ;  Ex-parte  Bennett,  10 

398  Ves.  393;  Ex-parte  Farley,  3  Dea.  <fe 

»  Fisk  V.  Sarber,  6  Watts  &  Serg.  Ch.  110. 

(Amer.),    18.      See  Ex-parte   Morland,  "Lord  Cranstown   v.  Johnstone,   3 

Mont.  &  M.  76.  Ves,  182,  5  Ves.  277;  Perena  v.  John- 

'  Stratford  v.   Twynam,  Jac.    418;  son,  3  Sm.  k  G.  419. 
Cliambcrs  v.  Waters,  3  Sim.  42 ;  S.  C. 
Waters  v.  Groom,  11  CI.  &  Fin.  684. 


FRAUD  PRESUMED. 


ICl 


character  :  such  as  executors  and  administrators  ;  *  *  assignees 
of  a  bankrupt ;  ^  commissioners  of  bankrupts  and  other  judicial 
ofiicers;^  committees  of  lunatics;*  governors  of  a  charity;^ 
receivers  ;®  directors  of  a  railway  or  other  company  ;'f  to  ar- 


'  H?.ll  V.  Ha'Jctt,  1  Cox,  134;  Killick 
V.  Flexaey,  4  Bro.  C.  C.  161;  Watson 
u.  Toone/6  MadJ.  153  ;  Baker  v.  Carter, 
1  Y.  <fe  C.  250;  Groves  v.  Perkins,  6 
Sim.  576 ;  Pickering  v.  Pickering,  2 
Beav*.  31 ;  Wedilerl)iirn  v.  Wedderburn, 
4  M.  d:  C.  41 ;  Burton  v.  Ilassard,  3  Dr. 
&  War.  461  ;  Allfrey  v.  AlltVey,  1  Mac. 
<fe  G.  87  ;  Smedley  v.  Vavley,  23  Beav. 
359 ;  I'rideaux  v.  Lonsdale,  1  D.  J.  & 
S.  433. 

*  Ex-pnrte  Reynolds,  5  Ves.  707  ;  ex- 
purte  Hughes,  6  Ves.  617;  ex-parte 
Lacey,  il>.  625  ;  cr-p  irte  Jatnes,  8  Ves. 
337  ;  ex-i>niie  Bennett,  lU  Ves.  381  ;  re 
Browne,  7  Ir.  Ch.  274;  Pooley  v.  Qiiil- 
ter,  2  D.  <fe  J.  327.  See  Adams  »-. 
8worder,  2  1).  J.  &  S.  44.  Leave  may 
be  given  by  the  court  to  the  assignee  to 
purchase  the  bankrupt's  estate.  Ex- 
par/e  .James,  8  Ves.  348  ;  cx-parte  Har- 
rison, Buck,  17;  ex-pai-te  Bage,  4  Madd. 
460;  Anon.,  2  Russ.  350;  ex-pnrte 
Serle,  1  Gl.  <fe  Ja.  187;  ex-par le  Beau- 
mont, 1  M;)nt.  <fc  A.  304.  In  one  case 
an  assignee  was  removed  in  order  that 
be  might  bid  at  a  sale  of  the  bankrupt's 
estate.  Er-parle  Peiks,  3  M.  I),  cfc  Deg. 
385.  The  leave  must  be  previously  ob- 
tained. Bt'lbre  the  court  will  entertain 
any  such  ap[)lic.ition  on  the  part  of  the 
assignee,  he  must  first  obtain  tlje  con- 


sent of  the  creditors,  at  a  mec-ling 
called  for  lh3  purpose  of  enabling  them 
to  assent  to  or  dis.sent  f"om  the  proposed 
purchase.  Ex-parte  Molineux,  4  D.  & 
C.  401  ;  Anon.,  2  Russ.  350;  and  even 
then  the  court  will  not  make  the  order, 
except  under  ver}- special  circumstances. 
Ex-parte  Hodgson,  1  Gl.  &.  J.  14 ;  ex- 
parte  Towne,  4  D.  <fe  C.  519.  In  a  case 
where  the  com-t  refused  to  allow  an  as- 
signee to  bid,  he  was  allowed  to  name 
the  i)rice  he  would  give,  if  the  property 
was  nfit  sold  by  auction,  and  afterwards 
to  buy  at  that  price.  Ex-parte  Holy- 
man,  8  Jur.  156.  If  a  purc'.iase  by  an 
assi^-nee  be  found  beneficial,  it  may  be 
confirmed  by  the  court.  Ex-parie  Gore, 
6  Jur.  1118,"  7  Jur.  136. 

'  Ex-pnrte  James,  8  Ves.  338 ;  fx- 
jpnrtc  Bennett,  10  Ves.  381.  See  Camp- 
bell ('.  I'ennsylvania  Life  Insurance  Ca., 
2  Whart.  (Amer.)  53. 

*  Wright  V.  Proud,  13  Ves.  136. 

'  Att.-Gen.  v.  Lord  Clarendon,  17 
Ves.  5110. 

«  Alven  w.  Bond,  1  FI.  &  Kel.  196; 
Eyre  y.  McDonnell,  15  Ir.  Cli.  534 ;  Bod- 
dington  v.  Langford,  ib.  558. 

'  Benson  v.  Jleathorn,  1  Y  &.  C.  C. 
C.  326;  York  and  Korlh  Midland  Rail- 
waj-  Co.  v.  Hud-son,  16  Beav.  485  ;  Great 
Luxembourg  Railway  Co.  v.  Magnay, 


*  Davoe  v.  Fanning,  2  Jolins.  Ch.  252 ;  Mulford  o.  Minels,  3  Stock.  16 ; 
Meaiior  v.  Hamilton,  27  Penu.  I;j7;  Swayzei).  Burk,  12  Pet.  11 ;  Cannon  v. 
Jenkins,  1  Dev.  Cb.  122. 

t  Hoffman  Steam  Coal  Co.  v.  Camberland.  Coal  &  Iron  Co.,  16  Md.  456* 
Cumberland  Coal  &  Iron  Co.  v.  Sherman,  30  Barb.  553;  Spence  v.  Whit- 
taker,  3  Port.  297. 

Ajyrocheiii  ami,  Collins  v.  Smith,  1  Head,  251. 

A  pledgee,  Md.  Fire  Ins.  Co.  v  Dalrymple,  25  Md.  242 ;  Baltimore  Mar. 
Ins.  Co.  V.  Dalrymple,  25  Md.  302. 

A  p;  rson  who  enters  under  a  contract  to  purchase,  Hallet  v.  Collins,  10 
How.  174. 

But  not  to  a  sale  to  the  sheriff,  Mark  v.  Lawrence,  5  H.  «fc  J.  64 ;  Isaac 
V.  Clarii,  2  Gill,  1. 


.102  FRAUD  PRESUMED. 

bitrators  ;*  to  a  member  of  a  corporation  taking  a  lease  of  the 
corporate  property,^  and  many  other  cases.^  The  disability 
extends  in  general  to  all  persons  who  being  employed  or  con- 
cerned in  the  affairs  of  another  acquire  a  knowledge  of  his 
property/  Partners  in  business  of  an  assignee  in  bankruptcy 
are  equally  disqualified  from  purchasing  as  the  assignee  him- 
self.' 

The  principle  does  not,  however,  apply  to  the  case  of  a 
mortgages  dealing  with  the  mortgagor,^  nor  to  the  case  of  a 
puisne  mortgagee  buying  the  mortgaged  property  from  a  prior 
mortgagee  under  the  exercise  of  his  power  of  sale;'  nor  to 
the  case  of  a  tenant  for  life  purchasing  from  trustees  for  sale 
under  a  power  to  be  exercised  with  his  consent ;  ^  nor  to  the 
case  of  a  tenant  for  life  or  mortgagor  with  power  to  sell  or  lease 
selling  or  leasing  to  a  trustee  for  himself ;  ®  nor  does  the  prin- 
ciple apply  to  the  case  of  merely  nominal  trustees,  such  as 
trustees  who  have  disclaimed,^"  or  trustees  to  preserve  contingent 
remainders.-^^ 

If  the  tenant  of  charity  lands  happens  to  be  a  trustee,  that 
is  a  circumstauce  to  excite  suspicion,  if  the  land  be  of  an  inad- 
equate value.  At  the  same  time  it  must  be  remembered  that 
the  case  of  a  charity  estate  is  one  in  which  of  all  others  the 
security  of  the  rent  is  the  first  object  to  be  regarded.     In  such 


25  Beav.  587 ;  Gaskell  v.  Chambers,  26  *  Sug.  V.  &  P.  587,  14th  ed.  supra,  p. 

Beav.   360;  Aberdeen   Railway  Co.  v.  151. 

Blaikie,  1  Wacq.  4G1 ;  ex-pnrie  Hill,  32  *  Ez-parte  Burnell,  7  Jur.  116. 

L.  J.  Ch.  154;  Spacktnau's  Case,  34  L.  *  Knight  v.  Marjoribanks,  2  Mac.  <feG. 

J.  Ch.  321.  10,  2  H.  &  Tw.  308  ;  Dobson  v.  Land,  8 

*  lilennerhassett  v  Day,  2  Ba.  &,  Be.  Ila.  220;  but  comp.  Hickes  v.  Cooke,  4 

116.  Dow.    16;    Downes   v.    Grazebrook,    3 

^  Att.-Gen.  v.  Corporation  of  Casliel,  Mer.  200;  re  Bloye's  Trust,  1  Mac.   & 

3  Dr.  &  War.  294.  G.   490;  Robertson   v.   Norris,   1   Gifi. 


See  ex-jxtrte  Morgan,  12  Ves.  6 
Grover  v.  Hugell,  3  lUiss.  428 ;  Green. 
law  V.  Hugell,  3  Beav.  49;  IJeaden  v. 


King,-9  Ila.  499;  Dimes  v.  Proprietors  "  Howard  v.  Ducane,  T.  &  R.  81 


of  Grand  Junction  Railway  Co.,  3  H.  L 
759;  Denton  v.  Donnor,  23  Beav.  285; 


421 ;  Ford  v.  Olden,  L.  R.  3  Eq.  461. 

'  Sliaw  V.  Eunny,  2D    J.  A  S.  468; 
Kirkwood  v.  Thompson,  ib.  ()]3. 


Bevan  v.  Hahgood,  \  3.  &  H.  222. 
Stacey  v.  Elph,    1   M.   &  K.   195; 


re  Ronayne's  Estate,  13  Ir.  Ch.  444.  Chambers  v.  Waters,  3  Sim.  42. 

"  J'arkes  v.  White,  11  Ves.  20S,  22ft. 


FRAUD  PRESUMED.  1G3 

cases,  tlierefore,  the  inadequacy  of  tlie  rent  reserved  is  less  a 
badge  of  fraud  than  it  would  be  in  almost  any  other  case.-^ 

Considerations  of  a  similar  character  apply  to  the  case  of 
transactions  between  persons  standing  to  each  other  in  the  rela- 
tion of  solicitor  and  client.^  *  It  is  the  duty  of  a  solicitor  to 
protect  the  interests  of  his  client.  The  client  is  entitled  to  the 
full  benefit  of  the  best  exertions  of  the  solicitor.  A  solicitor 
may  not  bring  his  own  personal  interest  in  any  way  into  con- 
flict with  that  which  his  duty  requires  him  to  do,^  f  or  make  a 
gain  for  himself  in  any  manner  whatever  at  the  expense  of  his 
client  in  respect  of  the  subject  of  any  transactions,  connected 
with  or  arising  out  of  the  relation  of  solicitor  and  client,  beyond 
the  amount  of  just  and  fair  professional  remuneration  to  which 
he  is  entitled.^:}:     A  solicitor  may  not  even  enter  into  an  agree- 

'  ^a;-/)«/-fe  PMnner,  2  Mer.  457,  *   Wood    v.    Downes,   18  Ves.  120; 

'  See  Walmsley  i;.  Booth,  2  xUb.  29;  Rhodes    v.    Eeauvoir,    6    Blio-h,    195; 

Newman    v.    Payne,    2    Ves.    Jr.    201;  Champion  y.    Rii;-bv,  Taml.  421,  9  L.  J. 

Rhodes  V.  Beauvoir,  6  Bligli,  195;  Cas-  Ch.  N.  S.  211 ;  Lyddon  )'.  Moss,  4  D.  & 

borne  j;.  Barsham,  2  Beav!  70;  Ilohuan  J.  104;  Proctor  v.  Robnison,  35  Beav. 
V  Loynes,  4  I).  INI.  &  O.  270.                    *    335  ;  Tj'rrell  v.  Bank  of  London,  10  H, 

'  =  Lawless  v.  Mansfield,  1  Dr.  &  War.  L.  26,  44. 
557,  631. 


*  De  Rose  v.  Fay,  3  Edw.  Ch.  3G9  ;  s.  c.  4  Edw.  Ch.  40  ;  Gray  ».  Em- 
mons, 7  Mich.  533. 

t  Valentine  ?\  Stuart,  15  Cal.  387;  Cox  v.  Sullivan,  7  Geo.  144  ;  Hoopea 
V.  Burnett,  26  Miss.  428. 

I  Cleavinger  v.  Reimar,  4  W.  »&  S.  486  ;  Brock  v.  Barnes,  40  Barb.  521 ; 
Giddings  v.  Eastmm,  5  Paige,  561 ;  Barry  v.  Whitney,  8  Sandf.  090. 

An  attorney  is  bound  to  disclose  to  his  client  every  adverse  retainer, 
and  even  every  prior  retainer,  which  may  afiect  the  discretion  of  the  latter. 
Williams  «.  Reed,  3  Mason,  455. 

An  attorney  can  not  abandon  his  client,  and  go  over  to  the  adverse 
party.  Valentine  v.  Steward,  15  Cal.  387;  Wilson  v.  State,  10  lud.  392; 
Price  t\  Grand  Rapids  &  Ind.  R.  R.  Co.  18Ind.  137. 

The  mere  fact  that  he  has  obtained  knowledge  of  the  matters  con- 
nected with  the  suit  in  the  course  of  other  business  does  not  prevent  him 
from  acting  adversely  to  his  former  client.  Price  v.  Grand  Rapids  &  Ind. 
R.  R.  Co.  18  Ind.  137. 

An  attorney  may  make  the  measure  of  his  compensation  a  part  of  the 
contract  by  which  he  agrees  to  per-Ibrm  the  services  needed,  and  such  a 


164  FRAUD  PRESUMED. 

ment  with  a  man  to  be  liis  solicitor  in  a  particular  transaction 
upon  the  terms  of  getting  a  greater  benefit  than  be  would  ob- 
tain by  the  costs  which  he  is  entitled  to  charge  according  to 
the  rules  of  law.^  If,  indeed,  a  solicitor  be  a  trustee,  he  is  not 
entitled  to  charge  for  professional  services  in  respect  of  the 
trust  estate.'^ 

A  solicitor  is  not  under  any  incapacity  to  purchase  from  or 
sell  to  a  client.  A  solicitor  may  deal  with  a  client  or  purchase 
a  client's  property  even  during  the  continuance  of  the  relation, 
but  the  bartben  of  proof  lies  on  him  to  show  that  the  transac- 
tion has  been  perfectly  fair.^*  A  prudent  man  would  not  deal 
with  his  client  without  the  intervention  of  another  solicitor, 
but  there  is  no  rule  that  a  solicitor  may  not  take  such  a 
course.*  He  must,  however,  be  prepared  to  show  that  he  gave 
his  client  the  same  protection  as  he  would  have  given  him,  if 

>  Stran'^-e  v.   Brennan,  15  L.  J.  Ch.  »  Stanes  v.    Parker,   9    Bear.    385; 

389  ;  rincv  v.  Beattie,  32  L.  J.  Ch.  734  ;  Todd  v.  Wilson,  ib.  486. 

see  i^ve  Whitcombe,  8  Beav.  140  ;  comp.  ^  ^  Supra,  ix  Ul.             ^    ,    ^,     ^ 

Lyddon  v.  Moss,  4  D.  &  J.  104;  Gallo-  ■*  Cutts  v.  Salmon,  21  L.  J.  Ch.  750, 

way  V  Corporation  of  London,  L.  R.  4  per  Lord  St.  Leonards ;  Jones  v.  Price, 

Eqf  90;   see  further  as  to  accounts  be-  20  L.  T.  49 ;  see  Watt  v.  Grove,  2  Sch. 

tween    solicitor    and   client,  Nokes  v.  &  Lef.  503. 
Warton,  5  Beav.  448. 


contract  will  be  as  binding  upon  the  client  as  any  one  into  which  he  can 
enter.  Legatt  v.  Sallee,  3  Port.  115;  Wallis  y.  Loubat,  10  Paige,  352; 
Balsdbangh  v.  Fraser,  19  Penn.  95 ;  Mills  v.  Mills,  26  Ct.  213.  Contra,  ex- 
parte  Plitt,  2  Wallace,  Jr.  453. 

A  judgment  by  confession  to  an  attorney  wUl  only  stand  as  security  for 
-what  is  actually  due.     Starr  v.  Vandersheyden,  9  Johns.  253. 

A  security  taken  during  the  pendency  of  a  suit  can  not  be  enforced  for 
anything  beyond  the  sum  actually  due.     Mott  v.  Harrington,  12  Vt.  199. 

An  attorney  who  holds  a  judgment  for  himself  and  a  judgment  for  his 
client  against  a  common  debtor,  and  collects  his  own  by  the  use  of  dili- 
gence, beyond  the  obligations  of  his  trust  can  not  be  compelled  to  pay  the 
money  to  his  client.     Cox  v.  Sullivan,  7  Geo.  144. 

The  doctrine  applies  to  suits  before  magistrates  as  well  as  in  court. 
Buifalow  r.  Buffalow,  2  Dev.  tt  Bat.  Eq.  241. 

*  Evans  v.  Ellis,  5  Dcnio,  640  ;  Mills  v.  Ervin,  1  McCord's  Ch.  524  ;  Mat- 
ter of  Post,  3  Edw.  Ch.  369. 


FRAUD  PRESUMED.  165 

dealing  witli  a  F.tranger,  and  must  satisfy  tlie  court  tliat  he  has 
taken  no  advantage  of  his  professional  position,  but  has  duly 
and  honestly  advised  his  client  as  an  independent  and  disinter- 
ested adviser  would  have  done,  and  has  brought  to  his  knowl- 
edge everything  which  he  himself  knew  necessary  to  enable 
him  to  form  a  judgment  in  the  matter,  and  he  must  in  particu- 
lar be  able  to  show  that  a  just  and  fair  price  has  been  given.^* 
He  should,  indeed,  be  prepared  to  show  how  the  contract  was 
entered  into,  who  made  the  first  offer,  and  what  were  the  cir- 
cumstances attending  the  transaction.^  The  possibility  of  a 
speculative  or  contingent  advantage  does  not  fall  within  those 
communications  which  a  solicitor  is  bound  to  disclose  to  his 
client,  if  the  transaction  has  been  in  other  respects  fair,  and 
the  point  was  as  much  open  to  the  observation  of  the  one 
party  as  the  other.'  If  a  solicitor  be  employed  as  an  agent  for 
sale  or  purchase,  he  may  not  purchase  from  or  sell  to  himself 
surreptitiously  without  the  knowledge  or  consent  of  his  client.* 

»  Gibson  v.  Jeves,  6  Ves.  277  ;  Mont-  gins,  1  Giff.  270 ;  Crowdy  v.  Day,  ib 

esquieu  v.   Sandj-s,  18  Ves.  302;  Cane  316;  Pearson  v.  Benson,  28  Bcav.  599; 

V.  Lord  Allen,  2  Dow.  294;  Morgan  v.  Marquis  of  Clanricardo  v.  Ilenning,  30 

Lewes,    4    Dow.    ao,   47;    Molony   v.  Beav.  175;  Beale  w.  Billing,  13  Ir.  Ch. 

L'Estrange,   Beat.   406  ;    Champion  v.  250 ;  Gibbs  v.  Daniel,  4  Giff.  1 ;  Adams 

Kigby,Taml.421,  9  L.  J.  Ch.  N.  S  211 ;  v.  Sworder,  2  D.  J.  &  S.  44  ;  Rhodes  v. 

Up^pington    V.    Bullen,   2  Dr.  &  War.  Bate,  L.  R.  1  Cii.  Ap.  252. 

185;  iEdwards  v.  Meyrick,  2  Ila.  GO ;  ^  Jones   v.   Price,   20  L.   T.   49;  sea 

Higgins  V.  Joyce,  2  J.  &.  L.  282;  Spen-  Rhodes  v.  Bate,  L.   R.  1  Ch.   Ap.  252; 

cer"^.  Tophain,  22   Beav.  573  ;  Holinan  see  also   Moore   v,  Prance,  9   Ha.  299, 

V.  Loynes,  4  D.  M.  &  G.  270  ;   Hesse  v.  where  a  deed  was  set  aside  tliougli  the 

Briant,  6  D.  M.   &  G.  623 ;  Savery  v.  solicitor  derived  no  benefit  from  it. 

King,  5  H.  L.  627 ;  Tomson  v.  Judge,  3  '  Edwards  v.  Meyrick,  2  IL  60 ;  see 

Drew.  306 ;  Barnard    c.  Hunter,  2  Jur.  Montesquieu  v.   Sandys,   18  Ves.  302; 

N.  S.  1213;  Knight  ti.  Bowyer,  2  D.  <fe  Ramsbottom   v.   Parker,    6   Madd.    6; 

J.  421,  445;  Gresley  v.  Mousley,  4  D.  Holman  v.  Loynes,  4  D.  M.  &  G.  270; 

&  J.  78,  3   1).  F.  &  J.  433 ;  Lyddon  v.  Wentwortli  v.  Lloyd,  32  Beav.  467. 

Moss,  4  D.  it  J.   104;   Morgan «;.  Hig-  *  Ex-parte  James,    8  Ves.    352;  Exr 


*  ]\Iills  V.  Ervin,  1  McCorcVs  Ch.  524  ;  Bibb  v.  Smith,  1  Dana,  582 ; 
Downing  «.  Major,  2  Dana,  228 ;  Rose  v.  Mynatt,  7  Yerg.  30 ;  Phelps  v. 
Overton,  4  Hayw.  292;  Lecutt  v.  Bailee,  3  Port.  115;  Marshall  i-.  Joy,  17 
Vt.  54G  ;  Howell  v.  Ransom,  11  Paige,  538  ;  Smith  v.  Thompson,  7  B.  Mon. 
C05  ;  Lewis  «.  A.  J .  4  Edw.  Ch.  599. 


1G6  FEAUD  PEESUMED. 

If  the  sale  be  under  a  decree  of  tlie  court,  a  solicitor  employed  in 
the  ca\ise,  who  wislies  to  purchase,  should  first  obtain  leave  of 
the  court.^  A  solicitor  employed  in  the  sale  of  an  estate 
should  not  bid  for  the  estate  though  it  may  be  merely  for  the 
purpose  of  preventing  it  going  at  an  undervalue,  unless  he  first 
obtain  the  leave  of  the  court  to  do  so.  If  he  do  so  without  the 
leave  of  the  court  and  there  is  no  higher  bidder,  he  may,  if  the 
court  thinks  proper,  be  held  to  the  purcliase.^ 

The  rule  that  a  solicitor  who  deals  with  a  client  is  bound 
to  prove  tlie  fairness  of  the  transaction  applies  with  peculiar 
force  where  the  client  is  placed  at  a  disadvantage  from  his 
being  indebted  to  the  solicitor,  and  gives  him  a  security  for 
the  debt.^  If,  however,  the  court  is  satisfied  that  the  transac- 
tion has  been  on  the  whole  fair  and  reasonable,  and  that  no  un- 
due advantage  has  been  taken,  it  will  be  supported,  although 
there  may  have  been  some  irregularities  attending  it.*  A 
solicitor  who  advances  money  to  or  lias  dealings  with  a  client 
must  be  able  to  prove  the  advance  of  the  money  by  some 
other  evidence  than  the  instrument  creating  the  security.^    A 


parte  Bennett,    10  Ves.   381;   Cane  v.  Shaw  v.  Neale,  20  Bear.  157;  Coleman 

Lord   Allen,    2    Dow.    294;    llhodes  i;.  iJ.  Mellersli,  2  Mac.  <fe  G.  309 ;   Holman 

Beauvoir,    6    Bligh,    195;    Sidney    ».  v.  Loynes,  4  D.   M.  tfe   G.  270;  Lyddoa 

Ranger,  12  Sim.  118;   Bio ve'.s  Trust,  1  v.  Moss,    28   Beav.    598;  see  Jones  v. 

Mac.  &  G.  488 ;  Lewis  v.  liillman,  3  H.  Thomas,    2   Y.    &   C.    498 ;  Morgan  v. 

&  L.  (507;  Tyrrell  v.  Bank  of  London,  Higgins,  1  Giff.  270;  Re  Foster,  2  D.  F. 

10  H.  L.  2f),  44;    Adams  v.  Sworder,  2  cfe  J.  110;  Re  Pugh,  1  D.  J.  &  S.  673. 

D.  J.  »b  S.  44.  '  Jones  v.  Koberts,  9  Beav.  419;  Bla- 

>  Siilney  v.  Ranger,  12  Sim.  118.  grave  v.  Routh,  8  D.  M.  cfe  G.  621 ;  see 

'' Nelthorpe   v.  "Pennyman,    14   Ves.  Cooke  v.  Setree,   1   V.  <feB.  12G;  Plen- 

517.  derleati)  v.  Frazer,  3  V.  &  B.  174  ;  Law- 

'  Proof  V.   Hines,  ca.   t.  Talb.  115;  less  v.  Mansfield,   1  Dr.   cfe  War.  557; 

Walmslcy  v.  Booth,  2  Atk.  29;  Draper's  Stedman  v.  Collett,  17  Beav.  608  ;  Mos3 

Co.  V.  Davis,  ib.  295 ;  Ward  v.  Hartpole,  v.  Bainbrigge,   6  D.  M.  &  G.  292  ;  see 

cit.  3  Bli-  h,  470 ;  Newman  v.  Payne,  2  Clieslyn  v.  Dalby,  2  Y.  &  C.  170;  comp. 

Ves.  Jr.  200;   Cooke  v.  Setree,  1  Y.  <fe  Lyddon  v.  Moss,  4  D.  &.  J.  104. 

B.    126;    Daly  v.   Kelly,    4  Dow.  417,  Mlorgan  *'.  L«wes,  4  Dow.  46;  Mor- 

430;  Casborne  v.  Barsham,  2  Beav.  76;  gan  v.  Evans,  3  CI.  &,  Fin.  195  ;  Lawless 

Champion  v.  Rigbv,  Taml.  421,  9  L.  J.  v.  Mansfield,  1   Dr.  &  War  557;   Gres- 

Ch.  N.  S.  211;  Bellamy  v.  Sabine,  2  Ph.  ley  v.  Mousley,  3  D.  F.   «fe  J.  4:53;  see 

425  ;  Lawless  ;•.  Jlanslield,  1  Dr.  &.  War.  Jones  )'.  Thomas,  2  Y.  &  C.  498 ;  Stain- 

557  ;Upi>ington  v.  Hullen,  2  Dr.  &  War.  ton  v.  Carron  Co.  24  Beav.  352. 
185;  Edwards  v.  Meyrick,  2  Ha.  60; 


PEAUD  PRESUMED.  1G7 

Bolieitor  cannot,  under  any  circumstances,  take  security  from 
liis  client  for  future  costs,^  or  for  moneys  to  be  advanced 
for  the  pm-poses  of  a  cause  ;^  but  tlie  security  given  by  a  client 
to  his  solicitor  for  past  costs  or  for  moneys  actually  due  will  be 
supported  xitond fide? 

The  statement  of  an  untrue  consideration  in  a  deed  of  pur- 
chase or  sale  between  attorney  and  client  is  fatal  to  the  deed. 
The  court  will  never  support  a  deed  where  an  attorney  is  pur- 
chaser and  the  consideration  is  untruly  stated.* 

The  rule  which  throws  upon  a  solicitor  dealing  with  his 
client  the  burthen  of  proving  the  fairness  of  the  transaction  is 
not  confined  to  cases  where  the  solicitor  is  actually  employed 
at  the  time,  but  may  extend  to  cases  where  a  solicitor  has  in 
the  course  of  his  employment  on  a  previous  occasion  acquired 
or  had  tlie  means  of  acquii-ing  any  peculiar  knowledge  as  to 
the  property.^  *    As  a  general  rule,  however,  it  no  longer  ap- 


*  Jones  V.  Tripp,  Jac.   322  ;  Williams  *  Uppinfjton  v.  Bullen,  2  Dr.  «fe  War. 

V.  Piggott,  ih.  598 ;  Buoth  v.  Creswicke,  184;  see  llolman  v.  Loynes,  4  D.  M.  & 

13  L.J.  Ch.  217;   Coleman  ?»,  Mellersh,  G.  270. 

2  Mac.  &  G.  309  ;  see  Pitcher  v.  Rigby,  ^  Holman  v.  Lovnes,  4  D.   M.  <fe  G. 

9  Pri.  79.  270;    Gibbs   v.    Daniel,  4  Giff.  1;  see 

'  Uppington  v.  Bullen,  2  Dr.  <fe  War.  Carter  v.  Palmer,  8  CI.  <fe   Fiu.    667 

184.  707. 

=  Cheslyn  v.  Dalbj',   2  Y.  &  C.  170; 
Edwards  v.  Meyrick,  2  Ha.  60. 


*  Galbraith  v.  Elder,  8  "Watts,  81 ;  Reid  v.  Stanley,  6  W.  &  S.  326 ; 
Eockcnburg  v.  Carlisle,  5  W.  &  S.  348. 

As  the  necessities  of  litigutio  i  compel  confidence  on  one  side  the 
policy  of  the  law  requires  fidelity  on  the  other.  The  jJolicy  which  enjoins 
good  faith  requires  that  it  should  never  be  violated.  The  reasons  for  re- 
quiring it,  all  demand  that  it  should  be  pei-petual.  Occasions  may  arise 
when  an  upright  counsellor  may  feel  himself  bound  to  withdraw  from  his 
client's  cause,  but  no  circumstances  whatever  can  justify  him  in  betraying 
the  trust  reposed  under  the  highest  obligation  of  professional  honor. 
Where  fidelity  is  required,  the  law  prohibits  everything  which  presents  a 
temptation  to  betray  the  trust.  The  orison  which  deprecates  temptation 
is  the  offspring  of  infinite  wisdom,  and  the  rule  of  law  in  accordance  with 
it,  rests  upon  the  most  substantial  foundations.     The  purchase  by  an  at- 


1G8  FRAUD  PRESUMED. 

plies  after  there  has  been  an  entire  cessation  of  the  relation ; ' 
nor  will  it  apply  in  cases  where  the  transaction  is  entirely  nn- 
connected  witli  the  duty  of  the  attorney.^*  Nor  will  it  apply 
with  the  same  force  where  the  relation  though  not  terminated 
has  been  loosened  and  the  influence  consequent  on  the  relation 
which  formerly  existed  between  the  parties  is  not  subsisting  in 
its  full  and  perfect  force.^  The  solicitor  of  a  plaintiff  out  of 
whose  hands  the  property  is  entirely  taken  by  act  of  law,  as 
upon  a  sale  by  execution,  is  not  debarred  from  purchasing  the 
property  in  execution.  Neither  the  defendant  in  the  execu- 
tion nor  a  third  person  can  object  to  the  validity  of  the  trans- 
action/f     But  as  between  him  and  his  client,  the  transaction 


'  Gibson  v.  Jeyes,  6  Ves.  211 ;  Wood  '  See  Jones  v.  Thomas,  2  T.   <fe  C. 

V.  Downes,   18  Ves.  120;   Montesquieu  519. 

V.  Sandys,  ib.  313  ;  Cane  r.  Lord  Allen,  ^  Moss  v.  Bainbrigge,  6  D.  M.  &  G. 

2  Dow. "^289 ;    Moss  v.  Bainbrigge.  6  D.  292. 

M.  &  G.  292  ;  see  Dent  v.  Bennett,  4  M.  *  Howell    v.    Baker,    4    Johns.    Ch. 

<fe  C.  269,  211;  Carter  v.  Palmer,  8  CI.  (Amer.),    121;  Hawley    v.    Cramer,  4 

&  Fin.  657  ;  Blagrave  v.  Routh,  8  D.  M,  Cow.  (Amer.),  Ill ;  see  Austin  v.  Cham- 

&  G.  620.  bers,  6  CI.  &  Fin.  1,  S2ipra,  p.  159. 


tomey  of  an  interest  in  tlie  thing  in  controvery  in  opposition  to  the  title 
of  his  client,  is  forbidden  because  it  places  him  under  temptation  to  be 
unfaithful  to  his  trust.  Such  a  pm-chase,  therefore,  enures  to  the  benefit 
of  his  client.  Where  the  confidence  has  relation  to  the  title  to  land,  the 
fidelity  of  the  counsel  must  necessarily  follow  the  title  of  his  client  wher- 
ever it  goes.  Any  other  rule  would  defeat  the  object  of  the  trust  by  de- 
stroying the  market  value  of  the  title.  K  the  client's  vendee,  and  even  his 
orphan  children  may  be  ruined  by  means  of  violating  the  trust  reposed  by 
their  vendor  or  ancestor,  and  such  breaches  of  trust  are  sanctioned  by  the 
courts,  all  land  titles  would  be  in  jeopardy,  the  bar  would  cease  to  en- 
joy the  confidence  of  the  people  and  the  courts  of  justice,  instead  of  being 
the  bulwarks  of  public  and  private  security,  would  become  the  most  in- 
tolerable engines  of  disturbance  and  oppression.  Henry  v.  Raiman,  25 
Penn.  354. 

An  attorney  may  buy  other  property  in  good  faith,  even  though  it  ad- 
joins the  property  owned  by  his  client.     Smith  v.  Brotherline,  63  Penn. 

461. 

*  Wendell  v.  Van  Renssler,  1  Johns.  Ch.  344. 

t  Leach  v.  Fowler,  22  Ark.  143. 

In  order  to  relieve  an  attorney  from  the  obligation  to  which  the  pre- 


FRAUD  PRESUMED.  169 

is  not  valid,  if  the  siira  given  by  him  is  insufficient  to  satisfy 
the  debt,  unless  the  client  assents  to  the  purchase.  If,  how- 
ever, the  purchase-money  is  sufficient  to  pay  the  debt  of  tlie 
client,  the  latter  cannot  object  to  the  transaction.^* 

The  rule  which  throws  upon  a  solicitor  dealing  witli  his 
client  the  burthen  of  proving  the  fairness  of  the  transaction, 
applies  to  the  case  of  voluntary  agreements,  and  not  to  a  case 
where  the  solicitor  is  in  the  hostile  attitude  of  an  urgent  and 
pressing  creditor.^  Nor  does  the  rule  apply,  where  the  trans- 
action is  totally  disconnected  with  the  relation  and  concerns, 
objects,  and  things  not  embraced  in,  or  affected  by,  or  dependent 


•  Hawley  v.  Cramer,  4  Cow.  (Amer.),       13  ;  Pearson  v.   Benson,  28  Beav.  599; 
71Y.  see  Moss  v.  Bainbrigge,  6  D.  M.  <fc  Gr. 

'  Johnson  v.  Fesenineyer,   3  D.  <fe  J.       292. 


sumption  of  law  gives  rise,  it  must  appear  affirmatively  that,  before  the 
transuctiou  or  dealing  took  place,  the  relation  was  completely  at  an  end, 
so  that  no  influence  could  rationally  be  supposed  any  longer  to  exist. 
Lewis  V.  A.  J.  4  Edw.  Ch.  599. 

*  Case  V.  Carroll,  35  N  Y.  385 ;  Moore  v.  Bracken,  27  111.  23  ;  Howell  v. 
Baker,  4  Johns.  Ch.  118  ;  Leisinring  v.  Black,  5  Watts,  303 ;  "Wade  v.  Pette- 
bonc,  11  Ohio,  557,-  Smith  v.  Thompson,  7  B.  Mon.  305  ;  Stockton©.  Ford, 
11  How.  233. 

If  there  are  two  plaintiffs  in  an  execution,  an  attorney  can  not  purchase 
the  property  levied  upon  for  the  benefit  of  one  without  the  consent  of  the 
other  for  less  than  the  whole  sum  due  on  the  judgments.  Leisinring  v. 
Black,  5  "Watts,  303;  Hawley  v.  Cramer,  4  Cow.  717;  "Webb  «.  "White,  18 
Tex.  573. 

A  purchase  alone  does  not  make  an  attorney  a  trustee.  He  is  a  trustee 
only  at  the  instance  of  his  principal.  Downey  v.  Garrard,  13  Harris,  52  ; 
s.  c.  3  Grant,  64. 

An  attorney  is  bound  to  perfect  fairness,  and  can  not  take  advantage 
of  untoward  circumstances  to  force  a  sale  to  the  ruin  of  a  debtor,  and  to 
his  own  profit.     Byers  v.  Surget,  19  How.  303  ;  s.  c.  1  Hemp.  715. 

The  rule  does  not  apply  between  the  attorney  and  grantees  of  tenants 
]n  common  with  his  client.     Cowan  «.  Barrett,  18  Mo.  2r)7. 

An  attorney  for  the  defendant  may  purchase  i)roperty  sold  under  an 
execution.  Devinney  v.  Norris,  8  "Watts,  314 ;  Cleavinger  v.  lieimar,  3  W. 
&  S.  486. 


170  FEAUD  PRESUMED. 

ui^on  that  relation.^  The  fact  that  the  purchaser  may  be  a 
solicitor,  and  that  the  vendor  had  no  legal  adviser,  there  having 
been  no  previous  relation  of  solicitor  and  client  between  them, 
does  not  bring  the  case  within  the  ordinary  rule  of  the  court 
in  such  cases.^ 

The  rule  with  regard  to  gifts  by  a  client  to  his  solicitor  is 
much  stricter  than  the  rule  with  regard  to  other  dealings 
between  them.  Gifts  from  a  client  to  a  solicitor  durino-  the 
existence  of  the  relation  appear,  upon  the  balance  of  author- 
ities, to  be  absolutely  invalid  upon  grounds  of  public  policy  ; 
nor  can  a  gift  by  a  client  to  a  solicitor,  after  the  cessation  of 
the  relation,  be  supported,  unless  the  influence  arising  from 
the  relation  may  be  rationally  supposed  to  have  ceased  also.*  * 
There  is  no  difference  in  principle  between  a  gift  to  a  man's 
wife  and  a  gift  immediately  to  himself,  if  the  gift  to  the  wife 
be  affected  by  undue  means  on  the  part  of  the  husband.*  The 
rule  in  respect  to  benefits  conferred  by  will  is  different.  A 
solicitor  may  take  a  benefit  under  the  will  of  a  client,  although 
he  may  himself  have  prepared  it,  if  no  undue  influence  was 

'  Montesquieu  »j.  Sandj-s,  18  Ves.  313;  470;  Walsh  v.   Studdert,  2  Con.  <fe  L. 

Jones  V.  Thomas,  2  Y.  &  C.  498;  Ed-  423;  Tomson  v.  Judge,  3  Drew,  306; 

wards  v.  Meyrick,  2  Ha.  60,  68.  Holman  v.  Loynes,  4  D.  M.  &  G.  270, 

^Edwards   v.   Williams,    11    W.   R.  283;  Be  Holmes's  Estate,  3  Giff.  337 ; 

561.  Gibbs  v.  Daniel,  4  Giff.  1 ;  O'Brien  v. 

"  Welles  V.  Midd!eton,  1   Cox,  112,  4  Lewis,  4  Giff.  221 ;  but  see  Oldham  v. 

Bro.  P.  C.   245;  Newman   v.   Payne,   2  Hand,  2  Ves.   259 ;  Harris  v.   Tremen- 

Ves.  Jr.  200  ;  Wright  v.  Proud  13  Ves.  heere,  15  A''es.  34  ;  Hunter  v.  Atkins,  2 

137, /ver  Lord  Kldon  ;   Wood  ?'.  Downes,  M.  &  K.    113;    Walker  v.   Smith,  29 

18  Ves.  120  ;  Goddard  v.  Carlisle,  9  i'ri.  Beav.  394. 

169;  Ward  v.  Uartpole,  cit.  3  Bligh,  *  Goddard  i).  Carlisle,  9  PrL  169. 


*  The  presumption  is  against  the  propriety  of  gifts,  but  it  is  not  in- 
vincible. I^esbit  V.  Lockmau,  34  N.  Y.  167;  Brock  ■y.  Barnes,  40  Barb. 
521. 

The  moment  that  it  is  ascertained  that  the  relation  is  finally  closed, 
gratitude  may  be  munificent,  or  even  prodigal.  But  it  must  be  clearly 
seen  that  the  bounty  springs  from  unfettered  gratitude,  not  from  pre- 
vious entanglements ;  that  it  is  a  free-will  offering  for  difficulties  over- 
come, not  the  fulfillment  of  a  vow  extorted  in  peril.  Berrien  v.  McLane,  1 
BoS.  Ch.  43 ;  Legatt  v.  SaUe,  3  Port.  115. 


FRAUD  PRESUMED.  171 

exerted  by  Lim  over  the  testator,^  and  the  will  was  not  exe- 
cuted under  any  mistake  or  misapprehension  caused  by  him- 
self.^ But  a  solicitor  cannot  be  allowed  to  take  any  benefit 
from  his  own  professional  ignorance.  A  solicitor  is  bound  to 
have  full  professional  knowledge,  and  to  give  the  information 
to  his  client.  If  a  solicitor  is  employed  to  prepare  a  deed,  or 
to  make  a  will,  the  law  imputes  to  him  a  knowledge  of  all  the 
legal  consequences  to  result  therefrom,  and  requires  that  he 
should  distinctly  and  clearly  point  out  to  his  client  all  those 
consequences  from  which  a  benefit  may  arise  to  himself  from 
the  instrument  so  prepared.  If  he  fail  to  do  so,  he  cannot,  as 
against  his  client  or  any  one  claiming  under  him,  derive  any 
benefit  under  the  instrument.^ 

The  principles  which  apply  in  the  case  of  dealings  between 
solicitor  and  client,  are  also  applicable  to  the  case  of  a  counsel 
employed  by  a  man  as  his  confidential  adviser;^  to  the  case  of 
a  man  who  has  constituted  himself  the  legal  adviser  of  an- 
other,^ or  has  ofi*ered  him  legal  advice  in  the  matter ;  *  and  to 
the  case  of  the  clerk  of  a  solicitor  who  has  acquired  the  con- 
fidence of  a  client  of  his  master.''  *  In  Parnell  v.  Tvler,' 
where,  on  a  sale  by  a  mortgagee,  the  purchaser  had  employed 
a  clerk  of  the  solicitor  of  the  mortgagee  to  bid  for  him,  the 
transaction  was  set  aside. 


1  Walker  v.  Smith,  29  Beav.  394.  M'Cabe  v.  Hussey,  2  Dow  &  01.  440,  5 

MTindson  v.  Weatherill,  5  D.  M.  &  Bligh's  N.  S..  715;  Carter  v.  Palmer,  8 

G.  301  ;  see  Raworth  v.  Marriott,  1  M.  CI.  &.  Fin.  657,  707 ;  Brown  v.  Kennedy, 

&  K.  643.  33  Beav.  133. 

'  Se;?rave  v.  Kirwan,  Beat.  157  ;  Mac-  *  Tate  v.  Williamson,  L.  R.  1  Eq.  528 ; 

donald  v.  Lillie,  1  Blii^h,  315  ;  Bulkley  2  Ch.  App.   65  ;  see  Wyse  v.  Lambert, 

V.  Wilford,  2  CI.  &  Fin.  102,  8  Bligh's  16  Ir.  Ch.  379. 

N.  S.  Ill ;  Bayly  v.  Wilkins,  3  J.  &  L.  "  Davis  v.  Abraham.  5  W.  R.  465. 

6S0;  Nanney?'.  Williams,  22  Beav.  452;  ^Hobday  v.   Peters,  28  Beav.    349; 

Corley   v.    Stafford,    1    D.    &   J.    238;  Nesbitt   v.    Berridge,    32    Beav.    284; 

Greenfield  v.  Bates,  5  Ir.  Ch.  219 ;  see  Poillou  v.  Martm,  1  Sandf.  Ch.  (Amer  ) 

Laiiglcv  V.  Fisher,  9  Beav.  100 ;  Waters  569. 

V.  Thorn,  22  Beav.  547.  "  2  L.  J.  Ch.  N.  S.  195. 

*  Purcell  V.  Macnamara,  14  Ves.  91 ; 


*  Poillon  V.  Martin,  1  Saudf.  Ch.  569. 


172  FRAUD  PRESUMED. 

Considerations  of  a  like  nature  apply  to  the  case  of  persons 
standing  in  the  relation  of  principal  and  agent.  A  person 
who  is  an  agent  for  another  undertakes  a  duty  in  which  there 
is  a  confidence  reposed,  and  which  he  is  hound  to  execute  to 
the  utmost  advantage  of  the  person  who  employs  him.  The 
principal  is  entitled  to  the  full  Leuefit  of  the  best  exertions  of 
the  agent.  An  agent  cannot  be  allowed  to  place  himself  in  a 
situation  which,  under  ordinary  circumstances,  might  tempt 
him  not  to  do  that  which  is  the  best  for  his  principal.  He 
may  not  derive  any  profit  or  advantage  from  the  business  in 
which  he  is  employed,  beyond  the  compensation  to  which  he 
is  entitled  for  his  services.^  * 


1  Enst  India  Co.  V.  Henchman,  1  Ves.  orowicz,  3  K    &  J.   230;  Maxwell  v. 

Jr.  289 ;  Massey  v.  Davis,  2  Ves.  Jr.  Port  Tenant  Patent  Steam  Fufl  Co  ,  24 

3lV;    Ex-parte   Hughes,    6   Ves.  617;  Beav.  495  ;  Tja-rell  *■.  Bank  of  London, 

Yorii  Buildings  Co.  v.  M'Kenzie,  3  Pat.  10  H.   L.  26,  39 ;    Attwool  v.   Merry- 

Sc.   Ap.  398,  3   Ross's  L.  C.  Sc.   305;  weather,   37  L.  J.  Cli.  35;  see  Benson 

Ilothschild  I'.Brockman,   2  Dow  ife  CI.  v.   Heathorn,   1    Y.    <fe   C.  C.  C.    326; 

188,   5  Bligh's  N.   S.   165;  Benson  v.  Ritchie    v.    Couper,     28    Beav.    344; 

Heathorn,  1  Y.  <fe  C.  C.  C  342 ;  Bentley  Walsliam  v.    Stainton,    1    D.  J.   <fc   S. 

V.  Craven,  18  Beav.  75;  Beck  v.  Kant-  678. 


*  Read  t.  Warner,  5  Paige,  650 ;  Banker  v.  Miles,  30  Me.  431 ;  Knabe 
«.  Pemot,  16  La.  An.  13  ;  Meeker  v.  York,  13  La.  An.  18;  Bruce  v.  Daven- 
port, 36  Barb.  349  ;  Grant  v.  Seitzinger,  2  Penna.  525  ;  Massie  v.  Watts,  6 
Cranch,  148  ;  Churcb  v.  Sterling,  16  Ct.  388  ;  Myers'  Appeal,  2  Barr,  463; 
McDonald  r.  Fitliian,  1  Oilman,  269;  Kanada  v.  North,  14  Mo.  615. 

The  paramount  and  vital  principle  of  the  law  governing  the  relation 
of  principal  and  agent,  is  good  faith ;  and  so  sedulously  is  this  principle 
o-uarded,  that  all  departures  from  it  are  esteemed  frauds  upon  the  confi- 
dence bestowed.     Keighler  v.  Savage  Manuf.  Co.,  12  Md.  383. 

An  agent  who  purchases  property  for  himself,  which  he  is  employed  to 
purchase  for  another,  becomes  a  trustee  for  his  principal.  Massie  v.  Watts, 
6  Cranch,  148;  Church  ■».  Sterling,  16  Ct,  388  ;  Parkhurst  v.  Alexander,  1 
Johns.  Ch.  394  ;  James  v.  M'Keman,  6  Johns.  543  ;  McKinley  v.  Irvine,  13 
Ala.  381;  Wcllford  r.  Chancellor,  5  Gratt.  39;  Matthews  v.  Light,  32  Me. 
305  •  Schedda  v.  Sawyer,  4  McLean,  181 ;  Blount  v.  Robeson,  3  Jones'  Eq. 
73  ;  Gardner  v.  Ogden,  22  N.  Y.  327;  Moore  v.  Mandelbaum,  8  Mich.  433  ; 
Pil'lsbury  v.  Pillsbury,  17  Me.  107;  Burrill  v.  Bull,  3  Sandf.  Ch.  15;  Har- 
graves  v.  King,  5  Ired.  Eq.  491. 

An  ao-ent  who  is  employed  to  sell  property,  can  not  make  himself  agent 


FRAUD  PRESUMED.  173 

There  is  no  rule  to  prevent  an  agent  from  dealing  with  his 
principal  in  respect  of  the  matter  in  which  he  is  employed 
as  agent.  But  an  agent  who  seeks  to  uphold  a  transaction 
between  himself  and  his  principal,  must  be  able  to  show  to 
the  satifaction  of  the  court  that  he  gave  his  principal  the  same 
advice  in  the  matter  as  an  independent  and  disinterested 
adviser  would  have  done,  and  made  a  full  disclosure  of  all  he 
knew  respecting  the  property,  and  that  the  principal  knew 
with  whom  he  was  dealing,  and  made  no  objection  to  the 
transaction,  and  that  the  price  was  just  and  fair.^  *     However 


'  York  Buildings  Co.  v.  M'Kenzie.  3  v.  Keman,  2  Dr.  (feWar.  31 ;  TrevelyaD 

Pat.  Sc.  Ap.  398,  3  Ross'  L.  C.  Sc.  305  ;  v.  Charter,  4  L.  J  Ch.  K  S.  209 ;  Char- 

Lowtlier  v.  Lowlher,  13  Ves.  103;  VVatt  ter  v.  Trevelvan,  11  CI.  &  Fin.  714,  732; 

V.   Grove,  2  Sch.  &  Lef.  492;  Wood-  Mulhallen  I'.'Marum,  3  Dr.  &  War.  317; 

house  V.  Meredith,  1  J.  &  W.  204 ;  Lord  Murphy  v.  O'.-hea,   2  J.  <fe  L.  422,  425 ; 

Selsev  V.  Pvhoades,  2  Sim.  &.  St.  41,   1  Chirlie  v.  Tippins:.  9  Beav.  284  ;  Bloye's 

Bli-ii'-s  N.  S.  1;  Cane  v.  Lord  Allen,  2  Trust,  1  Mac.  <fe  "G?.  488;  Lewis  v.  liill- 

Dow.  294;  Rothschild  v.  Brockman,  2  man,  3  H.  L.  607;  Rhodes  v.  Bate,  L.  R. 

Dow  A  CI.   188,   5  Bligli's  N.  S.    165;  1  Cii.  Ap.  252. 
Barker  v.  Ilarrison,  2  Coll.  546 ;  Molony 


for  other  parties  for  the  purchase  thereof.  Moore  t\  Mandclbaum,  8  'SUch. 
433. 

An  auctioneer  can  not  purchase  at  a  sale  made  by  himself.  Kearney  v. 
Taylor,  15  How.  494;  Veazie  v.  Williams,  8  How.  134;  lugerson  v.  Stark- 
weather, Walk.  Ch.  346. 

If  an  agent  converts  property,  the  principal  may,  at  his  election,  ratify 
the  transaction,  and  claim  whatever  profits  are  made  by  it.  Motley  v. 
Motley,  7Ired.Eq.  211. 

If  a  person  at  a  judicial  sale  represents  that  he  is  bidding  in  the  in- 
terest of  the  owner,  and  thereby  prevents  competition,  he  becomes  a  mere 
trustee  for  the  owner.  Cocks  v.  Izard,  7  Wall.  559 ;  Brewer  v.  Lynch,  1 
Paige,  147  ;  Denton  v.  McKenzie,  1  Dessau.  289 ;  Martin  v.  Blight,  4  J.  J. 
Marsh.  491 ;  Wood  v.  Hudson,  5  Munf.  433. 

An  agent  buying  property  under  the  judgment  of  his  principal,  becomes 
a  mere  trustee  for  his  principal  if  he  buys  for  less  than  the  claim.  Smith 
t.  Lan.^ing,  23  N.  Y.  520  ;  Eishleman  v.  Lewis,  49  Penn.  410. 

*  Brooke  v.  Berry,  2  Gill.  83  ;  Teackle  v.  Bailey,  3  Brock.  43  ;  Torrey 
V.  Bank  of  Orleans,  9  Paige.  649 ;  s.  c.  7  Hill,  360  ;  Dobson  v.  Racey,  7  N. 
Y.  216  ;  Moseley  ».  Buck,  3  Munf  233 ;  Butler  v.  Haskell,  4  Dessau.  651 ; 
Taylor  r.  Knox,  1  Dana,  391 ;  s.  c.  5  Dana,  466 ;  Marshall  v.  Joy,  17  Vt. 
546  ;  Casey  v.  Casey,  14  111.  113  ;  Fisher's  Appeal,  34  Penn.  29  ;  Moore  v. 


174  FRAUD  PRESUMED. 

fair  the  transaction  may  be  in  otlier  respects,  any  underhand 
dealing  on  the  part  of  an  agent  will  render  it  impeachable  at 
the  election  of  the  principal.  It  is  immaterial  that  the  agent 
may  have  taken  no  advantage  by  the  bargain.  It  is  sufficient 
that  he  has  not  acted  with  that  good  faith  which  the  court 
requires,  and  has  placed  himself  in  a  situation  which  might 
tempt  an  agent  to  allow  his  own  interest  to  come  into  conflict 
with  that  which  his  duty  requires  him  to  do.^  * 

An  a^ent  who  is  emploved  to  sell,  cannot  become  the  pur- 
chaser  surreptitiously  and  without  the  knowledge  or  assent  of 
his  employer  ;  ^  f  ^^r  can  an  agent,  who  is  employed  to  pur- 
chase, purchase  secretly  from  himself,  or  from  his  own  trustee,^:}: 

1  Gillett  V.  Peppercorne,  3  Beav.  18;  Fx-parte  Hughes,  6  Ves.  617;  Wood- 

Murphv  »'.  O'Shea,  2  J.  &  L.  422;  Char-  house   v.    Meredith,    1    J.  <fe  W.    204; 

ter  V.  Trevelyan,    11   CI.  &  Fin.  714;  Trevelyan  v.  Charter,  4  L.  J.  Ch.  N.  S. 

Clarke  u  Tippino;,  9  Beav.  284  ;  Wilsoa  209;    Charter  v.  Trevelyan,   11   01.  & 

V  Short,  0  11a.  383 ;  Hobday  v.  Peters,  Fin.   714 ;    Edgecumbe  v.   Stranger,  1 

2*8  Beav.  349 ;  Tyrrell  v.  Bank  of  Lon-  Jur.  400  ;  Murphy  v.  O'Shea,  2  J.  &  L. 

don,  10  H.  J.  26;  Wentworth  v.  Lloyd,  422;  Lewis  v.   Hillman,  3   H.  L.  607; 

32  Beav.  467.  Bentley  v.  Craven,  18  Beav.  75. 

""  York  Buildings  Co.  v.  M'Kenzie,  3  '  East  India  Co.  /'.  Henchman,  1  Ves. 

Pat.  Sc.  Ap.  398/ 3  Ross's  L.  C.  Sc.  305;  Jr.  289;  ISIassey  v  Davies,  3  Ves.  317  ; 


Mandelbaum,  8  Mich.  433 ;  Farnam  v.  Brooks,  9  Pick.  212 ;  Comstock  v. 
Comstock,  57  Barb.  453 

If  a  party  entering  into  a  contract  has  the  full  means  of  knowledge 
committed  to  him  by  the  other  party,  and  does  not  choose  or  neglects  to 
avail  him?elf  of  them,  it  is  his  own  fault  if  the  bargain  turns  out  unfavor- 
able.    Farnam  v.  Brooks,  9  Pick.  212. 

*  Moore  v.  Moore,  5  N.  Y.  256  ;  s.  c.  4  Sandf.  Ch.  37  ;  Gould  v.  Gould, 
36  Barb.  270  ;  Segar  v.  Edwards,  11  Leigh,  218  ;  Shannon  v.  Marmaduke, 
14  Tex.  217;  Barton  v.  Moss,  32  111.  50;  Cram  «.  Mitchell,  1  Sandf  Ch. 
251 ;  Cumberland  Coal  Co.  v.  Sherman,  30  Barb.  553. 

t  Dobson  V.  Racey,  3  Sandf.  Ch.  60 ;  Torrey  v.  Bank  of  New  Orleans,  9 
Paige,  G49  ;  Banks  v.  Judah,  8  Ct.  145. 

Such  a  purchase  is  not  void,  but  voidable.      Gaines  v.  Acre,  Minor, 

141. 

There  is  no  distinction  between  a  judicial  and  a  private  sale,  where  the 
ao-ent  controls,  and  the  oflBcer  acts  under  his  instructions.  Moore  ».  Moore, 
5  N.  Y.  256 ;  Bridgen  v.  Atkins,  25  Tex.  388 

^  I  Conkcy  v.  Bond,  36  N.  Y.  427 ;  s.  c.  13  Abb.  Pr.  (N.  S.)  415 ;  Marshall 
e.  Joy,  17  Vt  546. 

The  rule  applies  only  to  agents  who  are  relied  upon  for  counsel  and 


FRAUD  PRESUMED.  175 

or  for  his  own  benefit.^  Tlie  rule  applies  whether  the  ao-ent 
employed  to  purchase  was  actually  in  the  position  of  a  vendor 
or  intended  to  place  himself  in  that  position,^  So  also  an 
agent  who  is  employed  to  settle  a  debt,  or  to  make  an  arrange- 
ment, cannot  purchase  up  the  debt,  or  any  charge  upon  the 
property  which  is  the  subject  of  the  arrangement,  for  his  own 
benefit.'  The  disability  extends  to  the  clerk  of  an  agent  who, 
in  the  course  of  his  employment,  has  acquired  a  knowledge  of 
the  property  of  the  principal.* 

The  rule  that  an  agent  dealing  with  his  principal  must 
impart  knowledge  acquired  in  his  office,  does  not  apply  where 
the  relation  has  ceased,  and  there  is  another  agent  with  equal 
means  of  knowledge,  to  guard  the  interest  of  the  principal  in 
the  transaction.^  After  the  relation  of  principal  and  agent 
has  wholly  ceased,  or  the  agent  has  divested  himself  of  that 
character,  the  parties  are  restored  to  their  competency  to  deal 
with  each  other.^  But  an  agent  who  has,  in  the  course  of  his 
employment,  acquired  some  peculiar  knowledge  as  to  the 
property,  cannot,  after  the  cessation  of  the  relation,  use  the 
knowledge  so  acquired  for  his  own  benefit,  and  to  the  preju- 
dice of  his  former  client.' 

Rothschild  v.  Brockman,  2  Dow  <fe  CI.  '  Cane  v:  Lord  Allen,  2  Dow.  294 ; 

188;  Driscoll  v.  Bromley,   1    Jur.  238;  Reed  v.  Norris,  2  M.  <fe  C.  361  ;  Carter 

Gillett  V.    Peppercorne,    3   Beav.    78;  t).  Palmer,  8  CI.  <fe  Fin.  657,  11  Bligli's 

Barker  ('.  Harrison,  2  Coll.  546;  Bent-  N.  S.  397;  Hobday  v.  Peters,  28  Beav. 

ley  i\  Craven,  18  Beav.  75  ;  Maturin  v.  349. 

Tredinnick,  9  L.  T.  N.  S.  82 ;  Tyrrell  v.  *  Gardner  v.  Ogden,  8  Smith  (Amer.) 

Bank  of  London,  10  H.  L.  26.  327. 

'  Lees  V.  Nuttall,   2  M.   &  K.  819 ;  '  Scott  v.  Dunbar,  1  Moll.  442. 

Tavlor  v.  Salmon,  4  M.  &  C.  134  ;  see  »  Charter  v.  Trcvelyan,  4  L.  J.  Ch.  N. 

Ciii-ter  »\  Palmer,  8   01.   &  Fin.    657 ;  S.    2ii9 ,    see   York   Buildings    Co.    v. 

Bec>k  V.  Kantorowicz.  3  K.  <fe  J.   230;  M'Kenzie,  3  Pat.  So.  Ap.  379,s?</jra,  pp. 

Ilobdav  ('.  Peters,  28  Beav.  319.  153,  159,  167. 

"  Beck   V.   Kautorowicz,  3  K.   <fe  J.  '  Carter  7>.  Palmer,  8  CI.  <fe  Fin.  657 : 

242.  Ilolman  v.  Loynes,  4  D.  M.  &  G.  27a 


direction,  and  wliose  emploj'ment  is  rather  a  trust  than  a  service,  and  not 
to  those  who  are  employed  merely  as  instruii^ents  in  the  performance  of 
some  appointed  service.  Deep  River  Gold  Mining  Co.  v.  Fox,  4  Ired. 
Eq.  01. 


176  FRAUD  PRESUMED. 

An  agent,  for  instance,  wlio  in  the  course  of  his  employ- 
ment as  such  has  discovered  a  defect  in  the  title  of  his  em- 
ployer, cannot  after  the  relation  has  ceased  use  his  knowledge 
60  gained  to  acquire  a  title  for  himself.^  ^  Nor  can  a  man 
who  is  employed  as  a  confidential  agent  escape  from  liability 
under  the  pretence  that  the  business  has  been  entrusted  to  an 
agent  and  not  to  him,  unless  it  can  be  shown  that  the  agent 
was  intended  to  act,  and  in  fact  acted  independently  of  Inm.^ 

There  is  no  rule  preventing  the  same  agent  from  acting 
for  the  opposing  parties,  but  he  must  be  able  to  satisfy  the 
court  that  the  parties  were  substantially  at  arms'  length  in 
the  transaction,  and  that  there  has  been  the  utmost  fairness 
throughout.^  f 

A  gift  by  a  man  to  a  person  who  has  been  for  many  years 
his  confidential  agent  and  adviser  is  valid,  unless  the  party 
who  seeks  to  set  it  aside  can  show  that  some  advantage  was 
taken  by  the  agent  of  the  relation  in  which  he  stood  to  the 
donor.  If  the  conduct  of  the  agent  in  the  matter  appears 
to  have  been  fair,  honest,  and  lond  fide,  it  is  immaterial  that 
the  deed  of  gift  may  have  been  drawn  up  by  his  solicitor 
without  the  intervention  of  a  disinterested  third  party.*  The 
rule  with  respect  to  the  capacity  of  an  agent  to  accept  a  gift 
from  his  principal   is    not  so  strict  as   it  is  in  the  case  of 


269 


'  Rin"-o  V.  Binns,  10  Peters  (Amer,),       195 ;  Mattbie  v.  Edwards,  16  L.  J.  Ch. 


405. 


^Rhodes  v.  Bates,  L.   R.  1  Ch.  Ap.  ■*  Hunter  v.  Atkins,  3  M.  &  K.  113 

252  '  Nicol  V.  Vaughan,  1   CI.  &  Fin.  495 

^Hesse  v.  Briant,  6  D.  M.  &  G.  623;  see  Wyse  v.  Lambert,  16  Ir.  Ch.  379 

Garvey   y.  McMinn,  9  Ir.  Eq.  526  ;  see  Rhodes  v.  Bate,  L.  R.  1  Ch.  Ap.  252. 
Rhodes  v.   Beauvoir,    6   Bligh's  N.  S, 


*  Ringo  V.  Binns,  10  Pet.  2G9. 

t  Greenwood  v.  Spring,  54  Barb.  375.  A  person  can  not  be  agent  for 
both  parties  when  judgment  or  discretion  is  to  be  exercised.  Vanderpoel 
V.  Kearney,  2  E.  D.  Smi(h,  170 ;  Dunlob  v.  Richards,  2  E.  D.  Smith,  181; 
Central  Ins.  Co.  v.  Protective  Ins.  Co.,  14  K  Y.  85. 


FRAUD  PRESUMED.  177 

attorney  and  client,  trustee  and  cestui  qxie  trust,  and  guardian 
and  ward.  The  relation  in  wliicli  the  parties  stand  to  each 
other  being  of  a  sort  less  known  and  definite  than  in  those 
other  cases,  the  jealousj  is  diminished.'^ 

The  rule  of  equity  with  respect  to  dealings  between 
guardian  and  ward  is  extremely  strict,^  '•'"  and  imposes  a  gen- 
eral inability  on  the  parties  to  deal  with,  each  other.^  f  Where 
the  relation  of  guardian  and  ward  is  subsisting  between  two 
parties,  if  a  gift  or  anything  in  the  nature  of  a  gift  proceeds 
from  the  ward  towards  the  guardian,  when  the  ward  has  just 
come  of  full  age,  such  transactions  are  subject  to  be  viewed 
with  the  utmost  jealousy  by  courts  of  equity.  It  is  almost 
impossible  that  transactions  of  such  a  nature  can  be  sustained, 
unless  the  party  claiming  the  benefit  of  the  gift  can  show  to 
the  satisfaction  of  the  court  that  his  influence  has  not  been 
misapplied  in  the  particular  transaction.  Unless  it  appears 
to  be  a  spontaneous  act  on  the  part  of  the  ward,  or  unless  he 
was  informed  in  all  the  particulars  of  the  nature,  character, 
and  probable  consequence  of  his  jDroceeding,  such  a  transaction 
cannot  stand.^  X  Transactions  between  guardian  and  ward 
cannot  be  allowed  to  stand,  even  although  they  may  have 
taken  place  after  the  guardianship  has  come  to  a  close,  unless 

•Hunter  v.   Atkins,  3  M,  AK.  113;  22G.   Tutor  rem  pnpilU  emcre  non  potest. 

but  see  llobilay  v.   Tcters,    28   Beav.  Dig,  xviii,  tit.  1,  leg.  Ml. 

349.  *  Archer  v.  Hudson,  15  L.  J.  Ch.  211  • 

=  Hvlton  «  Hylton,  2  Ves.  548,  549 ;  Mulhallen   v.    Maruni,   3    Dr    <fe    War' 

Hatch  i'.  Hatch, '9  Ves.  292.  317;  see  Oldin  v.  Samborn,  2  Atk.  u\ 

^  See  Dawson  v.  Massey,  1  B.  &   B.  Beasley  v.  Magrath,  2  Sch.  &  Let.  35. ' 


*  Hanna  v.  Spotts,  5  B.  Mon.  3G2 ;  Wliilt  •».  Parker,  8  Barb.  48;  Vau- 
nickle  v.  Malta,  16  La.  An.  325. 

t  Galatian  v.  Erwin,  1  Hopk.  48;  Lee  v.  Pox,  6  Dana,  171  •  Walker  v. 
Walker,  101  Mass.  1G9 ;  Scott  v.  Freelaud,  7  S.  &  M.  401) ;  Meek  v.  Perry  36 
Miss.  190. 

X  Waller  v.  Armistoad,  2  Leigh,  11:  Love  v.  Lea,  2  Ired.  Eq.  637. 
There  is  no  distinction  between  a  deed  given  as  a  gratuity,  and  a  deed  of 
release,  acquittance,  or  discharge.     Waller  v.  Armistead,  2  Leio-h   11. 


178  FEAUD  PRESUMED. 

tlie  influence  wliicli  is  presumed  to  arise  from  the  relation 
lias  ceased  to  exist.^  *  The  influence  may  continue  to  exist 
for  a -considerable  time  after  the  actual  relation  has  ceased  to 
exist.*  As  long  as  the  accounts  between  the  parties  have  not 
been  fully  settled,  or  the  estate  still  remains  in  some  sort 
under  the  control  of  the  guardian,  the  influence  '*rill  be  pre- 
sumed to  exist.^t  The  influence  will  indeed  be  presumed 
to  exist,  unless  there  is  distinct  evidence  of  its  determination.* 
After  the  relation  has  entirely  ceased  not  merely  in  name 
but  in  fact,  and  a  full  and  fair  settlement  of  all  transactions 
arising  out  of  the  relation  has  been  made,  and  suflicient  time 
has  elapsed  to  put  the  parties  in  a  position  of  complete 
independence  to  each  other,  there  is  no  objection  to  any 
bounty  or  grant  conferred  by  the  ward  on  his  former  guardian.^ 
It  is  not  necessary  for  the  application  of  the  principle  that 

'  Hylton  V.  Hj-lton,  2  Ves.  548,  549  ;  son,  15  L.  J.  Ch.  211 ;  Mnifland  v.  Back- 

Hatcli  V.  Hatch,  9  Ves.  292;  Carey?;.  house,    17   L.   J.   Ch.   121;    Davies  v. 

Carey,  2  Sch.   &  Lef.  113 ;  Dawson  v.  Davies,  9  Jur.  N.  S.  1002. 

Massey,  1   B.  <fe  B.   219;    Aylward  v.  ^  Hylton  t'.  Hylton,  2  Ves.  547;  Daw- 

Kearney,   2  B.  <fe  B.  478;    O'Neill   v.  son   v.    Massey,   1   B.   <fe   B.   229;    see 

Hammi'll,  Beat.    618;  Maitland   v.  Ivv-  Stead  man  i;.  Palling,  3  Atk.  423;   MeiU 

iug,   15   Sim.   437;  Archer  v.  Hudson,  ish  v.  Mellish,  1  Sim.  &  St.  138;  Revett 

15   L.    J.   Ch.   211;    Maitland  t'.  Back-  v.  Haryey,  ib.  502;  Matthew   r.  Brise, 

house,  17  L.  J.  Ch.  121 ;  Espey  v.  Lake,  14  Beav.  345  ;  Espey  v.  Lake,  10  Ha. 

10  Ha.  260 ;  see  Rhodes  v.  Bate,  L.  R.  260. 

1  Ch.  Ap.  252.  '  Rhodes  v.  Bate,  L.  R.   1   Ch.  Ap. 

-  Hatch   )■.   Hatch,  9  Yes.  292 ;  Ayl-  252 ;  see  Archer  v'.  Hudson,  15  L.   J. 

ward    V.   Kearney,   2   B.    &    B.    463;  Ch.  211. 

O'Neill  V.  Iliimnnll,  Beat.  618  ;  Revett  *  Hylton  v.  Hylton,  2  Ves.  547,  549  ; 

V.  llarvcy,  1  Sim.  &  St.  502;  Maitland  see   Beasley  v.    Magrath,  2  >ch.  &  Lef. 

V.  Irving,  15  Sim.  437;  Archer  v.  Hud-  35;  Ross  v.  Steele,  1  Ir.  Eq.  171. 


*  Lee  v.  Fox,  6  Dana,  71;  Johnson  v.  Johnson,  5  Ala.  90;  Fish©. 
Miller,  1  noff.  Ch.  267 ;  Riipalie  v.  Moreworthy,  1  Sandf.  Ch.  399 ;  Brewer 
V.  Vanarsdale,  C  Dana,  204 ;  Richardson  v.  Linney,  7  B.  Men.  571 ;  Sherry 
V  Stansbnry,  3  Md.  320. 

t  Williams  v.  Powell,  1  Ired.  Eq.  460;  Gale  v.  Wells,  12  Barb.  84; 
Waller  v.  Armistead,  2  Leigh,  11  ;  Wright  v.  Arnold,  14  B.  Mon.  038.  A 
release  freely  and  fairly  given  without  misrepresentation,  or  undue  influ- 
ences is  valid.  Kirby  v.  Taylor,  6  Johns.  Ch.  342 ;  Kirby  e.  Turner,  1 
Hopk  309;  Southall  v.  Clark,  3  Stew.  &  Port.  338;  Myers  v.  Rives,  11 
Ala.  7«0. 


FRAUD  PEESUMED.  179 

the  relation  of  guardian  and  ward  should  exist  in  perfect 
strictness  of  terms,  or  that  the  guardian  should  be  a  guardian 
appointed  bj  the  Court  of  Chancery,  or  nominated  by  the 
father.  If  the  young  person  lives  with,  and  is  brought  up  or 
under  the  care,  influence,  and  control  of  a  near  relative  of 
mature  age — if  the  relation  of  guardian  and  ward  thus  subsist 
between  them — the  princij^le  is  equally  applicable.^  * 

The  p]-inciple  applies  to  tlie  case  of  a  third  party  who 
makes  himself  a  party  with  the  guardian  who  obtains  a  secm'- 
ity  from  his  ward.^ 

The  case  of  parent  and  child  comes  within  the  same  prin- 
ciple.^ Tlie  influence  which  a  parent  has  naturally  over  a 
child  makes  it  the  duty  of  the  court  to  watch  over  and  protect 
the  interests  of  the  child.  A  child  may  deal  with  or  make  a 
gift  to  a  parent,  and  such  dealing  or  gift  is  good,  if  it  be  not 
tainted  with  parental  influence,  operating  on  the  hopes  or 
fears  or  necessities  of  the  child.  A  child  is  presumed  to  be 
under  parental  influence,  as  long  as  the  dominion  of  the 
parent  lasts.  "Whilst  that  dominion  lasts,  it  lies  on  the  parent 
upholding  the  transaction  or  maintaining  the  gift  to  disprove 
the  exercise  of  parental  influence  by  showing  that  the  child 
was  really  a  free  agent,  and  had  competent  independent  ad- 
vice, or  had  at  least  competent  means  of  forming  an  inde- 
pendent judgment,  and  fully  understood  what  he  was  doing 
and  was  desirous  of  doing  it.*  f     The  principle  applies  for  at 

>  Beasley  v.  Magrath,  2  Sch.  <fe  Lef.  Llewellin   v.  Cobboltl,  1  Sm.  <fe  G.  376; 

31  ;  Revftt  v.   Harvey,   1    Sim.   &  St.  I'rideaux   v.   Lonsdale,   1   J).   J.    &  S. 

502;    Mulhallen   v.   Maruin,    3   Dr.   <fe  433. 

War.  317  ;  Arclier  v.  Hudson,  15  L.  J.  "  Espey  v.  Lake,  10  Ha.  200. 

Ch.  211  ;   Alllrey   v.   AUfrey,  1   JIac.  &  '  Casborne  v.  Eursliam,  2  Boav.  76. 

G.  98;  Espey  i;.  Lake,  10  lia.  260,202;  *  Carpenter  v.   Heriot,    1    Ed,   338; 


*  ■Waller  v.  Armistcad,  2  Leigh,  11 ;  Hanna  v.  Spotts,  5  B,  Mon.  362; 
Willman  ct  al.  Appeal,  28  Penn.  37G. 

t  The  presumption  is  that  the  advancement  of  the  interest  of  the 
child  was  the  object  in  view,  and  the  deed  is  not  prima  facie  void.     It  is 


180  FRAUD  PEBSUMED. 

least  a  year  after  the  coming  of  age  of  the  child,  and  will  ex- 
tend beyond  the  year,  if  the  dominion  lasts.^  The  court  will 
indeed  presume  the  continuance  of  the  influence,  unless  there 
is  a  distinct  evidence  of  its  determination.^  Where  the  par- 
ental influence  is  disproved  or  that  influence  has  ceased,  a 
dealing  between  parent  and  child,  or  a  gift  from  a  child  to  a 
parent,  stands  on  the  same  footing  as  any  other  dealing  or 
o-ift.^  The  entreaty  of  a  sick  father  to  a  child  does  not 
amount  to  undue  influence.*  'Nov  is  the  mere  fact  of  a 
daughter  soon  after  coming  of  age  voluntarily  giving  securities 
to  a  creditor  of  her  father  in  payment  of  his  debts  of  itself 
ground  for  imputing  undue  influence  to  the  father.^ 

Transactions  between  parent  and  child  which  proceed 
upon  arrangements  between  them  for  the  settlement  of  the 
family  property,  or  which  tend  to  the  peace  and  security  of 
the  family  and  the  avoidance  of  litigation,  do  not  come  within 

Heron  ?'.  Heron,  2  Atk.  160;  Young  v.  Hoghton   v.   Hogliton,  15   Beav.    800; 

Peachej',  ib.   254 ;    Rhodes  v.  Cook,  4  Wright  v.  Vanderplank,  8  D.  M.  &  G. 

L.  J.  Ch.'l49;  Casborne  ii.  Barsham,  2  135;    Bury   v.   Oppenheim,    26   Beav. 

Beav.    '76;    Hogliton   v.   Hoghton,    15  594;  Warde  v.  Dickson,   5  Jur.  N.  S. 

Beav'.    2*78;    Hartopp   v.  Hartopp,  21  699;    Davies  v:   Davies,  4  Giff.  417; 

Beav".  259  ;  Baker  v.  Bradley,  1  D.  M.  Beriloe  v.  Dawson,  34  Beav.  603 ;  Charn- 

<fe  G."  597  ;'  Wright  v.  Vanderplank,  8  hers  v.  Crabbe,  ih.  457  ;  but  see  Thorn- 

D.  ]M.   <fe  G.  135,  146;  Bury  v.  Oppen-  ber  v.  Shcard,  12  Beav.  589. 

heim,  26  Beav.  594;  Savery  r.  King,  5  °  Rhodes  v.  Bate,  L.   R.  1   Ch.  Ap. 

H.  l!  627,  655  ;  Jenner  v.  jenner,  2  D.  252. 

F.  &  J.  359 ;  Davies  v.  Davies,  4  Giff.  '  Wright  v.  Vanderplank,  8  D.  M.  & 

417;  Berdoe  t'.  Dawson,  34  Beav.  61  (S  ;  G.   135,  146;    Bury  v.  Oppenheim,  26 

Chambers  v.  Crabbe,  ib.  457 ;  Potts  v.  Beav.  594. 

Surr,  ib.  543  ;  Beale  v.  Billing,  13  Ir.  ■•  Farrent  v.  Blanchford,  1  D.  J.  <fe  S. 

Ch.  250.  107. 

'  7  H.  L.  722,  per  Lord  Cranworth.  °  Thornber  v.  Shcard,  12  Beav.  589, 

See  Walker  v.  Symouds,  3  Sw.  1,  72 ;  see  as  to  undue  influence,  in/ra,  p.  184. 


the  duty,  however,  of  courts  of  equity  carefully  to  watch  and  examine 
the  circumstances  attending  transactions  of  this  kind  to  discover  if  any 
undue  influence  has  been  exercised  in  obtaining  the  conveyance.  Jenkins 
V.  Pye,  13  Pet.  241 ;  Taylor  v.  Taylor,  8  How.  183. 

The  impulse  of  filial  duty  and  afl'ection  -will  be  deemed  a  satisfactoiy 
considtration  for  a  deed  in  instances  only  in  which  the  motives  are  shown 
to  have  been  free  and  unconstrained  in  their  operation.  Taylor  v.  Taylor, 
8  How.  183. 


FRAUD  PEESUMED.  181 

the  ordinary  rules  of  the  court  with  respect  to  parental  influ- 
ence. If  the  settlement  is  one  by  which  the  parent  acquires 
no  benefit,  not  already  possessed  by  him,  and  be  a  reasonable 
arrangement  and  for  the  benefit  of  the  family,  and  be  not 
obtained  through  misrepresentation  or  suppression  of  the 
truth,  it  will  be  supported  even  although  it  may  appear  that 
the  parent  did  exert  parental  influence  and  authority  over  the 
son  to  procure  his  execution  of  it.  If  the  child  is  fully  aware 
of  the  nature  and  eff'ect  of  the  transaction,  it  is  of  no  conse- 
quence that  he  niay  not  have  had  the  advice  of  a  separate 
solicitor ;  nor  can  he  be  heard  to  say  that  he  executed  the  set- 
tlement with  precipitancy.  If  the  settlement  be  for  the  benefit 
of  the  family,  a  court  of  equity  will  not  inquire  into  the 
degree  of  influence  which  may  have  been  exerted.^  Arrange- 
ments between  members  of  a  family  to  assist  their  several 
objects  or  relieve  their  several  necessities,  are  affected  by  so 
many  peculiar  considerations  and  are  influenced  by  so  many 
different  motives  that  they  are  withdrawn  from  the  ordinary 
rules  by  which  the  court  is  guided  in  adjudicating  between 
otlier  parties.^  The  court  does  not  minutely  weigh  the  con- 
siderations on  one  side  or  the  other.  Even  ignorance  of 
rights  may  not  avail  to  impeach  the  transaction.  But  trans- 
actions in  the  nature  of  a  bounty  from  a  child  to  a  parent  soon 
after  coming  of  age,  are  viewed  by  the  court  with  jealousy.' 
If  the  parent  gains  some  advantage  by  the  transaction 
which  he  did  not  previously  possess,  the  general  principles 
with  respect  to  parental  influence  apply,  and  the  transaction 
cannot  be  supported,  imless  it  can  be  shown  that  the  child 


» Tweddell  v.  TwocWell,  T.  <fe  R.  1 ;  ner,  2  D.  F.  &  J.  334 ;  Potts  v.  Surr,  34 

Bellamy  v.  Sabine,  2  Ph.  425;  Cooke  v.  Beav.  543;  Williams  v.  Williams,  L.  K. 

Burtciiaell,  2  Dr.  &  War.  165;  Wallace  2  Ch.  App.  295. 

»'.  Wallace,  v6.  452;  Iloglitnn  r.  IJogb-  '^  Bellamy   v.    Sabine,    2   I'li.    425; 

ton,  15  Bcav.  2*78,  305;    Baker  ?'.  Brad-  Head  v.  Godlee,  Johns.  536. 
ley,  7  D.  M.   &  G.  597;  Dimsdale  v.  'Baker  v.  Bradley,  ID   M.   &.  Q. 

Dinisdale,  3  Drew.  556;  Jenuer  v.  Jen-  620. 


182  FRAUD  PRESUMED. 

knew  what  he  was  domg  and  was  desirous  of  doing  it,  and 
was  not  unduly  influenced  by  his  father.*  The  same  consider- 
ations apply  where  a  third  person  takes  a  benefit  under  a 
deed  executed  by  a  son  in  favor  of  his  father.^ 

If,  however,  the  person  who  takes  the  benefit  is  a  member 
of  the  family,  and  the  parent  himself  takes  no  benefit,  the 
transaction  will  not  be  set  aside,  even  though  considerable 
pressure  may  have  been  nsed  by  the  parent  to  induce  the  son 
to  execute  it.  In  Wycherley  v.  Wycherley,^  where  the  father 
of  a  family,  with  some  warmth  of  temper,  insisted  upon  a 
deed  being  executed  by  a  son  for  the  benefit  of  his  two  sisters. 
Lord  Northington  would  not  set  it  aside."* 

The  principles  which  govern  the  case  of  dealings  of  persons 
standing  in  a  fiduciary  relation  apply  as  between  partners,'* 
between  principal  and  surety,^  and  generally  to  the  case  of 
persons  who  clothe  themselves  with  a  character  which  brings 
them  within  the  range  of  the  principle.'  A  man  who  pos- 
sesses the  confidence  of  another  will  not  be  allowed  by  a  court 

'Heron    v.    Heron,    2    Atk    160;  Ripley,  2  Mae.  &  G.  274;  Blissett  t). 

Hoghton  V.   Hogliton,   15  Beav.   278;  Daniel,  10  Ha.  538 ;   Clegg  v.  Edmond- 

Baker  v.  Bradley,  7  D.  M.   *fe  G.  620;  son,  8  D.  M.  &   G.  807;    Clements  v. 

Savery  v.  King,  5  H.  L.  627 ;  see  Rogers  Hall,  2  D.  <fe  J.  173  ;  Perens  v.  Johnson, 

V.  Bruce,  Beat.  486  ;  Rhodes  v.  Cooke,  3  i^m.  <fe  G.  419  ;  comp.  Knight  v.  Mar- 

4  L.  J.  (!h.  149  ;   Wallace  v.  Wallace,  3  joribanks,  11  Beav,  322. 
Dr,  &  War.  452  ;  Jenner  v.  Jcniier,  2  D.  "  See    Reed    v.  Norris,  2   M.   <fe  C. 

F,  &  J.  359;   Bolts  v.  Surr.  34  Beav.  361;   Rhodes  t).  Bate,  L.  R.  1  Ch.  Ap. 

543  ;  Berdoe  v.  Dawson,  ih.  603.  252. 

»  Berdoe  v.  Dawson,  ib.     See  Ser-  ^  Tate  v.  Williamson,  L.   R.  2  Ch. 

combe  v.  Saunders,  ib.  382.  App.    55.      See   Greenlaw   v.  King,   5 

^  2  Eden,  175.  Jar.  18  ;  Giddings  v.  Giddings,  3  Russ. 

*  Bentley  v.  Mackay,  31  Beav.  151.  241 ;  "Waters  v.  Bailey,  2  Y.  &  C.  C.  C. 

^  Bayne  v.  Ferguson,  5   Dow.  151  ;  219;  Tanner  v.  EKvortliy,  4  Beav.  487; 

Burton  k  Wookey,  6  Madd.  367;  Mad-  Smiths.  Kay,  7  H.  L.  750;  Coulson  v. 

deford  v.  Austwick,  1  Sim.  89,  2  M.  &  Allison,  2  D^  F.  &.  J.  521  ;  Prideaux  v. 

K.  279  ;    Spittal   v.  Smith,   Taml.  45  ;  Lonsdale,  1  D.  J.  &  S.  433,  supra,  p. 

Chambers  ;/.  Howell,  11  Beav.  8  ;  Bent-  152. 
ley  V.  Craven,  18  Beav.  75  ;  Maclure  v. 


*  riagg  1}.  Mann,  2  Sumner,  486 ;  Simmons  v.  Vulcan  Oil  Co.  61  Penn. 
202 ;  Short  v.  Stevenson,  63  Penn.  95. 

The  rule  does  not  apply  to  dealings  that  are  not  within  the  scope  of 
the  partnership  business.     Wheeler  v.  Sage,  1  "Wall.  518. 


FRAUD  PRESUMED.  183 

of  equity  to  take  advantage  of  that  situation,  althongli  the 
relation  of  solicitor  and  client,  or  principal  and  agent,  be  not 
strictly  constituted  between  them.  It  is  enough  that  a  man 
be  merely  consulted  as  a  confidential  friend.'  It  is  immaterial 
that  no  definite  relation  may  exist  between  the  parties.^  * 

The  principle  on  which  a  court  of  equity  acts  in  relieving 
against  transactions  on  the  ground  of  inequality  of  footing 
between  the  parties,  is  not  confined  to  cases  where  a  fiduciary 
relation  can  be  shown  to  exist,  but  extends  to  all  the  varieties 
of  relations  in  which  dominion  may  be  exercised  by  one  man 
over  another,  and  applies  to  every  case  where  influence  is  ac- 
quired and  abused  or  where  confidence  is  reposed  and  beti*ayed.^ 
In  cases  where  a  fiduciary  relation  does  not  subsist  between  the 
parties,  the  court  will  not,  as  it  does  where  a  fiduciary  relation 
subsists,  presume  confidence  put  and  influence  exerted:  the 
confidence  and  the  influence  must,  in  such  cases,  be  proved 
extrinsically,  but  when  they  are  proved  extrinsically,  the 
rules  of  equity  are  just  as  applicable  in  the  one  case  as  in  the 
other,* 

No  general  rule  can  be  laid  down  as  to  what  shall  constitute 
undue  influence.  The  question  is  one  which  must  in  each 
case  depend  on  its  own  particular  circumstances.  There  is  no 
head  of  equity  more  difiicult  of  application  than  the  avoid- 
ance  of  a  transaction  on  the  ground  of  advantage  taken  of 

'  Taylor  v.   Obee,   3  PH.   83 ;    see  Lord   Kinsjsclown ;  "Wyse  v.  Lambert, 

Darley  v.  Sini>leton,  Wiglit.  25.  10  Ir.  Ch.  379 ;  Rhodes  v.  Bate,  L.  R.  1 

"  J/).;  Butler  v.   Miller,  L.  R.  1  Ir.  Ch.  App.  252. 

Eq.  215.  ■"7  H.  L.  779,  per  Lord  Kingsdown ; 

'  llui^nenin  ?>.  Basley,  14  Ves.  273,  see  Casborne  v.  Barsham,  2  lieav.  76 ; 

286;  Dent  v.  Bennett,  4  M.  &  C.  269;  Boj'se   v.   Russborouixh,  3  Jur.   N.   S. 

Cooke  V.  Lamotte,  15  Bcav.  234  ;  B.ll-  373 ;   Bcanland  v.  Br.adlev,  2  Sni.  &  G. 

age  V.  Southee,  9  Ha.  534,  540;  Wil-  339;  Harrison  v.  Guest,  "o  L>.  M.  &  G. 

liams  V.  Bayley,  L.  R.  1  App.  Ca.  200;  424 ;  Rhodes  v.  Bate,  1  L.  R.  Ch.  Ap, 

Smith  V,   Kay,  7  II.  L.  750,  779,  per  252;  Lyon  v.  Home,  16  W.  R.  824. 


*  McUormick  v.  Malin,  5  Blackf.  509;  Wilsou  v.  "Watts,  9  Md.  356; 
Dismukes  v.  Teriy,  Walk.  197. 


184  FRAUD  PRESUMED. 

distress.^  The  case  presents  no  difiiculty  where  direct  restraint, 
duress,  or  oppression  can  be  shown.''  The  difficulty  arises 
when  the  court  has  to  determine  whether  the  advantage  taken 
of  distress  amounts  to  oppression,®  *  or  the  influence  exerted 
has  been  so  pressing  as  to  be  undue  within  the  rule  of  equity.* 
In  a  case  where  the  holders  of  forged  bills  working  on  the 
fears  of  a  father  for  the  safety  of  his  son,  who  had  forged  them, 
but  without  any  distinct  threat  and  without  any  distinct  prom- 
ise not  to  prosecute,  obtained  from  him  a  security  for  the 
amount  of  the  bills,  the  transaction  was  set  aside.^  In  a  case 
however  where  a  debtor  who  was  under  arrest  had  given  to  a 
creditor,  at  whose  suit  he  was  imprisoned,  a  warrant  of  at- 
torney to  confess  judgment  for  the  whole  amount  claimed,  the 
court  held  that  the  arrangement  having  been  entered  into  de- 
liberately, with  full  knowledge  of  the  circumstances  and  with 
professional  advice,  was  not  impeachable,  although  one  of  the 
debts  for  which  the  warrant  of  attorney  was  given  was  barred 

'  Ramsbottom  v.  Parker,  6  Madd.  6.  It  was  said  in  the  Pandects  that  the 

»  Xicholls   V.    Nicliolls.   1  Atk.   409;  partj'  must  be  intimidated  by  the  ap- 

Roy  J).  Duke  of  Bcauford,  2  Atk.  190;  prehension   of  some  serious  evil   of  a 

Thornhill  r.  Evans,  ib.  330 ;  Talleyrand  present  or  pressing  nature,  and  such  as 

t'.  Boulam^er,  3  Yes.  448;  Lampliigh  v.  is   capable    of    making  an   impression 

Lamplugh,    1    Dick.    411;    Gubbins  v.  upon  a  person  of  courage.      Pothier, 

Creed,  2' Sell.  <fe  Lef  214;  Underbill  w.  however,   thinks   this   rule  too    strict, 

Harwood,  10  Ves.  219  ;  Pickett  v.  Log-  and  that  regard  should  be  had  to  the 

gan,  14  Ves.  215 ;  Peel  i>. ,  16  Ves.  age,   sex,  and  condition  of  the  party, 

157;  Middletont).  Middleton,  IJ.  AW.  and   that  a  fear  which  would  not  be 

94  deemed  sufficient  to  have  influence  on  a 

'  Ramsbottom  v.  Parker,  6  Madd.  6.  man  in  the  prime  of  life,  might  be  suffi- 

*  Middloton  v.  Sherburne,  4  Y.  &  C.  cient  in  respect  of  a  woman,  or  a  man 

389 ;  Bovse  v.  Russborough,  3  Jur.  N.  in  the  decline  of  life.     Obi.  p.  1,  c.  1, 

S.  373 ;  Rhodes  v.  Bate,  L.  R.  1  Ch.  Ap.  art.  3.  g.  2,  p.  25. 

252.     The  civil  law  alwavs  sets  aside  a  ^  Williams  v.  Bayley,  L.  R.  1   App. 

contract  procured  by  force,  or  from  a  Ca.    2u0 ;    see  Nicholls   v.   Nicholls,  I 

want  of  liberty  in  the  contracting  party.  Atk.  409 ;  Scott  v.  Scott,  11  Ir.  Eq.  74. 


*  Butler  V.  Haskell,  4  Dessau.  651 ;  Kenny  v.  Udall,  5  Johns.  Ch.  464; 
Stewart  v.  Stewart,  7  J.  J.  Marsh.  183;  Lyon  i\  Talmadge,  14  Johns.  501; 
Driver  v.  Fortune,  5  Port.  9 ;  Hough  v.  Hunt,  2  Ohio,  435 ;  Esham  v. 
Lamar,  10  B.  Mon.  43;  Central  Bank  v.  Copcland,  18  Md.  305;  Hunt  v. 
Bass,  2  Dev.  Eq.  292 ;  Davis  v.  Morgan,  1  Dana,  20  ;  Tate  v.  Whitney,  Har- 
ring's  Ch.  145  ;  Kebey  v.  Hobby,  16  Pet.  269. 


FRAUD  PRESUMED.  185 

bj  tlie  Statute  of  Limitations.*  The  court  is  bound  to  examine 
carefully  into  a  contract  entered  into  with  a  party  who  is  in 
gaol,  and  to  see  that  no  undue  advantage  has  been  taken  of  his 
position.  But  it  is  not  true,  as  a  general  principle,  that  a  man 
in  insolvent  circumstances  and  in  prison  can  not  sell  his  prop- 
erty,^ 

In  charging  a  jury,  with  respect  to  what  shall  constitute 
undue  influence  in  the  making  of  a  will,  Mr.  Justice  Wilde 
said  as  follows,  in  a  very  late  case  :  '*  "To  make  a  good  will  a 
man  must  be  a  free  agent,  but  all  influences  are  not  unlawful. 
Persuasion  appeals  to  the  affections,  or  ties  of  kindred,  to  a 
sentiment  of  gratitude  for  past  services  or  pity  for  future  desti- 
tution or  the  like.  These  are  all  legitimate  and  may  be  fairly 
pressed  on  a  testator.  On  the  other  hand,  pressure  of  what- 
ever character,  whether  acting  on  the  fears  or  the  hopes,  if  so 
exerted  as  to  overpower  the  volition  without  convincing  the 
judgment,  is  a  species  of  restraint  under  which  no  valid  will 
can  be  made.  Importunity  or  threats  such  as  the  testator  has 
not  the  courage  to  resist ;  moral  command  asserted  and  yielded 
for  the  sake  of  peace  and  quiet,  or  of  escaping  from  distress  of 
mind  or  social  discomfort ;  these,  if  carried  to  a  degree  in 
which  the  free  play  of  the  testator's  judgment,  discretion,  or 
wishes  is  overborne,  will  constitute  undue  influence,  though  no 
force  is  either  used  or  threatened.  In  a  word  a  testator  may 
be  led,  not  driven,  and  his  will  must  be  the  ofispring  of  his 
own  volition  and  not  that  of  another."  * 

'Richards  v.  Curle-syis,  3  Eq.   Rep.  "  Brintley  w.  ITann,  1  Dni.  175;  see 

2*78 ;  see  ITinton  v.  Ilinton,  2  Vcs.  634;  Parker  v.  Clarke,  30  Beav.  54. 
Roy  V.  Duke  of  Beaufort,  2  Atk.  193;  =»  Hall  v.  H.ill,  18  L.  T.  N.  S.  153;  37 

Knight  V.  Marjoribanks,  11  Beav.  322,  2  L.  J.  Ch.  24;  L.  R.  Pr.  &  Div.  482.  ' 
Mac.    &  G.   lu;  Scott  v.   Scott,  11  Ir.  *  See  Farrent  v.  Blanchford,  1  D.J. 

Eq.    74 ;  comp.  Falkner  v.  O'Brien,   2  «S5  S.  121. 
Ba.<fe  Be.  220;  Wilkinson  v.  Stafford,  1 
Ves.  Jr.  43. 


*  Davis  'C.  Calvert,  5  G  &  J.  269 ;  Gardiner  v.  Gardiner,  34  N.  Y.  155  ; 
13 


186  FRAUD  PRESUMED. 

Mere  inadequacy  of  consideration  or  inequality  in  a  bargain 
is  not  a  ground  to  set  aside  a  transaction,  if  the  parties  were 
on  equal  terms  and  in  a  situation  to  judge  for  themselves,  and 
performed  the  act  wittingly  and  willingly.**      Mere   inade- 

»  Gartside  v.  Isherwood,  1  Bro.  C.  C.  Madd.  409  ;   Wood  v.  Abrey,  3  Madd. 

551;  Griffith  v.  Spiatley,   1    Cox,  383;  417;   Merediih    v.    Saunders,    2   Dow. 

Collier  v.   Brown,  ib.  4-J8  ;   Fox  r.  Ma-  514;  Curzon  ?>.  Belworthy,  3  H.  L.  742; 

cre'.h,  2  Cox,  322 ,  Murray  v.  Calmer,  2  Harrison  v.  Guest,  6  D.  M.  <fe  G.  434,  8 

Sch.  &  Lef.  488;   Copis  v.  Middleton,  2  H.  L.  481, 


Tyler  «.  Gardiner,  35  N.  T.  559  ;  Turner  v.  Cheeseman,  2  McCarter,  243 ; 
Moore  v  Blauvelt,  2  McCarter,  367  ;  Hall  v.  Hall,  38  Ala.  181. 

*  Butler  V.  Haskell,  4  Dessau.  651;  Eyre  v.  Potter,  15  How.  42  ;  Barei- 
beau  V.  Brant,  17  How.  43;  Farnam  v.  Brooks,  9  Pick.  212;  Steele®. 
Worthington,  2  Ohio,  352 ;  Wiutermute  v.  Snyder,  2  Green's  Ch.  489 ; 
Bedel  v.  Loomis,  11  N.  H.  9 ;  Cubbins  ».  Markwood,  13  Gratt.  495  ;  Erwin 
V.  Parbam,  12  How.  197. 

It  bas  been  left,  perbaps,  wisely,  to  tbe  experience  of  tbe  courts  of 
justice  to  apply  tbe  great  principles  of  equity  to  each  case  according  to 
its  particular  circumstances,  and  tbus  gradually  to  form  a  practical  sys- 
tem of  pure  justice.  And  tbe  courts  bave  never  decided,  as  a  broad  prin- 
ciple, tbat  mere  inadequacy  of  price,  unconnected  witb  direct  fraud  or  im- 
position, or  concealment,  or  advantage  taken  of  extreme  weakness  or 
great  necessity,  should  be  a  distinct  and  independent  ground  for  vitiating 
contracts.  But  tbe  courts  bave  said  tbat  tbe  inadequacy  may  be  so  gross 
as  to  furnish  strong  and  even  conclusive  presumjoiion  of  fraud,  and  tbat 
is  tbe  way  tbe  grossness  or  inadequacy  may  avoid  tbe  sale.  "Wherever  tbe 
courts  perceive  tbat  a  sale  of  property  bas  been  made  at  a  grossly  inade- 
quate price  such  as  would  shock  a  correct  mind,  this  inadequacy  faniisbes 
a  strong  and  in  general  a  conclusive  presumption,  though  there  is  no 
direct  proof  of  fraud,  that  an  undue  advantage  bas  been  taken  of  tbe 
ignorance,  the  weakness,  or  tbe  necessity  and  distress  of  tbe  vendor;  and 
this  imposes  upon  tbe  purchaser  tbe  necessity  to  remove  this  violent  pre- 
sumption by  the  clearest  evidence  of  tbe  fairness  of  bis  conduct.  Tbe  re- 
lief is  extended  not  only  to  young  heirs  selling  tbeir  expectancies,  but  to 
all  wbo  are  weak,  or  necessitous,  or  not  perfectly  conusant  of  tbeir 
rif^bts,  wbetber  selling  expectancies  or  absolute  estates,  more  especially 
■wbere  tbe  purchaser  is  very  intelligent  and  acute,  and  avails  himself  of 
bis  superiority  in  an  unreasonable  manner.  Butler  v.  Haskell,  4  Dessau. 
651. 

When  the  smallness  of  the  price  is  due  to  the  fault  of  tbe  vendor,  the 
sale  is  valid.     Forde  v.  Herron,  4  Munf.  816. 

The  inadequacy  of  tbe  price  given  at  the  sale  of  land  for  unpaid  taxes 


FRAUP  PRESUMED.  187 

quacy  of  consideration  is  not  a  ground  for  refusing  specific  per- 
formance of  an  unexecuted  contract,  and  still  less  can  it  be 
ground  for  rescinding  an  executed  contract.^  But  inadequacy 
of  consideration,  if  it  be  of  so  gross  a  nature  as  to  amount  in  it- 
self to  conclusive  and  decisive  evidence  of  fraud,  is  a  ground 
for  canceling  a  transaction.  In  such  cases  the  relief  is  granted 
not  on  the  ground  of  the  inadequacy  of  consideration,  but  on 
the  ground  of  fraud  as  evidenced  thereby.^*     In  determining 

» Collier  V.  Bro^vTi,  1  Cox,  428;  Coles  v.   Staniforth,   1  J.  .fe  H.  484.     But  it 

V.  Trecothick,  9  Ves.  246  ,  Calla^han  v.  has  been  enactod  by  31  Vict.  c.  4  that 

Calla  han,  8  01.  <fe  Fin.  401  ;  Bower  v.  no  purchase   made   bona  fide,  and  with- 

Ci  oper,  2  Ha.  408 ;   Borell  v.  Dann,  ib.  out   fraud    or   unfair   dealing,   of  ;iny 

AoO,  per   'Wiiram,   V.-C. ;     Abbott    v.  reversionary  interest  in  real  or  personal 

Sworder,   4   Deg.   &  Sm.  456 ;   comp.  estate,  shall  be  hereafter  opened  or  set 

Barnardiston  v.  Lingood,  2  Atk.  194;  aside  merely  on  the  ground  of  under- 

Falcke  V.  Gray,  4   Drew.  651.     There  value. 

was  till  very  recently  a  well  recognized  '  Gwynne  v.  Heaton,  1   Bro.  C.  C.  9; 

distinction  between  sales  of  estates  in  Gartside  ?>.  Isherwood,  ib.  559;  Ileath- 

possession   and    estates    in    reversion.  coate  v.   Paignon,   2    Bro.  C.   C.    173; 

The  sale  of  an  estate   in  reversion,  Lf  Evans  v.  Llewellin,  1  Cox,  33    ;  Gibson 

effected  by  private  contract,  was  liable  v.  Jeyes,  6  Ves.  266,  273  ;  Underbill  v. 

to  be  set  aside  at  anytime  afterwards  Ilorwood,  10  Ves.  209,   219;  Morsj  v. 

for  mere  inadequacy  of  consideration,  Koyal,  12  Ves.  373;  Wood  c  Abrey,  3 

and  the  onus  proband i.  did  not,  as  in  MadJ.   417;    1  laken -y    v.    Baggott,    1 

ordinary  cases,  rest  with  the  plaintiff  Dow  &  CI.  405 ;  Stillwell  v.  W  Ikins, 

seeking' to  impeach  the  rule,  but  with  Jac.    282;   Borell  v.   Dann,  2  Ha.  440, 

the  defendant  upholding  it.     Davis  v.  450;    Rice    v.    Gordon,    11  Beav.   265; 

Duke  of  Marlborough,  2" Sw.  151;  Gow-  Cockell  w.   Taylor,  15  Beav.   103,115; 

Ian  I  V.  De  Faria,  11  Ves.  20;    Earl  of  Falcke  v.  Gray,  4  Drew.  651 ;  Summers 

Aldborough  ?j.  Trye,  7  CI.  <fe  Fin.  456 ;  v.    Griffiths,   35    Beav.    27;    Butler  w. 

Edwards   v.    Burt,  2  D.  M.  &  G.  55  ;  Miller,  L.  R.  1  Ir.  Eq.  210. 
Bromley  v.  Smith,  26  Beav.  644 ;  Talbot 


thereon  does  not  constitute  a  valid  objection  to  the  sale.  Slater  v.  Max- 
well, 6  Wall.  268. 

*  Butler  ?j.  Haskell,  4  Dessau.  651 ;  McCormick  v.  Malin,  5  Blackf  509; 
Eyre  v.  Potter,  15  How.  43;  Veazie  v.  "Williams,  8  How.  134;  Wright  «, 
Stannard,  2  Brock.  312  ;  Green  v.  Thompson,  2  Ired.  Eq.  365  ;  Xcwnian  v. 
Meek,  1  Freeman's  Ch.  441  ;  White  v  Flora,  2  Overton,  42G ;  Hardeman  v. 
Berge,  10  Yerg.  202  ;  Knobb  v.  Lindsay,  5  Ohio,  468  ;  Osgood  v.  Franklin, 
2  Johns.  Ch.  1 ;  Stubl)lefield  v.  Patterson,  3  Hey.  128  ;  Jouziu  «.  Toulmin, 
9  Ala.  662  ;  Baker  v.  Howell,  4  Johns.  Ch.  118. 

The  qualification  to  the  rule  implies  necessarily  the  affirmation  that  if 
the  inadequacy  be  of  a  nature  so  gross  as  to  shock  the  conscience,  it  will 
amount  to  proof  of  fraud.  Byers  v.  Surget,  19  How.  303  ;  Wright  v.  Wil- 
son, 2  Yerg.  294  ;  Baruett  v.  Spratt,  4  Ired.  Eq.  171 ;  Dcaderickf.  Watkius, 


188  FRAUD  PRESUMED. 

wlietlier  the  consideration  is  or  is  not  adequate,  it  must  always 
be  remembered  that  there  are  fancy  prices  not  regulated  by 
intrinsic  value.-^ 

By  the  civil  law  a  sale  for  one  half  the  value  might  be  set 
aside  for  inadequacy.^    If  the  price  given  was  less  than  one- 

'  Abbott  V.  Sworder,  4  Deg.  &  Sm.  ^  Nott  v.  Hill,  2  Ch.  Ca.    120 ;  per 

456_  Lord  Nottingham ;  How  v.  ^^  eklon,  2 


8  HumpTi.  520  ;  Morris  v.  Philiber,  30  Mo.  145 ;  Hardeman  v.  Burge,  10 
Yerg.  202. 

Inadequacy  of  price  witLin  itself,  and  disconnected  from  all  other 
facts,  can  not  be  a  ground  for  setting  aside  a  contract,  or  affording  relief 
against  it.  What  this  something  besides  inadequacy  should  be,  perhaps 
no  court  ought  to  say,  lest  the  cunning  and  the  wary,  by  employing  other 
means  than  those  named,  should  escape  with  their  fraudulent  gains.  It 
ought,  however,  in  connection  with  the  inadequacy  of  consideration,  to 
induce  the  belief  that  there  has  been  either  a  suppression  of  the  truth,  the 
suggestion  of  falsehood,  abuse  of  confidence,  or  violation  of  duty  arising 
out  of  some  fiduciary  relation  between  the  parties,  the  exercise  of  undue 
influence,  or  the  taking  of  an  imjust  or  inequitable  advantage  of  one 
whose  peculiar  situation  at  the  time  would  be  calculated  to  render  him  an 
easy  prey  for  the  cunning  and  artful.  But  if  no  one  of  these  appear,  or  if 
no  fact  is  proved,  that  will  lead  the  mind  to  the  conclusion  that  the  party 
against  whom  relief  is  sought  has  suppressed  some  fact  that  he  ought  to 
have  disclosed,  or  that  he  has  suggested  some  falsehood,  or  abused  in 
some  manner  the  confidence  reposed  in  him,  or  that  some  fiduciary  rela- 
tion existed  between  the  parties,  or  that  the  party  complaining  was  under 
his  influence,  or  at  the  time  of  the  transaction  was  in  a  condition,  from 
any  cause,  an  easy  victim  to  the  unconscientious,  then  relief  can  not  be 
afforded.     Judge  v.  Wilkins,  19  Ala.  765. 

Whenever  equity  interferes  with  a  contract,  or  refuses  its  aid  to  cany 
it  into  execution  for  inadequacy  of  consideration,  it  is  on  the  ground  of 
fraud  whicb  must  either  be  clearly  proved,  or  result  irresistibly  at  the 
first  view,  and  without  calculation  from  the  grossness  of  the  disparity. 
Steele  V.  Worthington,  2  Ohio,  352;  Hardeman  ».  Burge,  10  Yerg.  203. 

Aji  entire  failure  of  cousideration  by  the  receipt  of  what  is  a  mere ' 
bubble,  may  be  the  ground  for  rescinding  a  contract.     Warner  v.  Daniels, 
1  Wood.  &  Min.  90. 

The  fact  that  the  sale  was  made  under  judicial  process  weakens,  but 
does  not  absolutely  remove  the  presumption  of  fraud  arising  from  great 
inadequacy.    Byers  v.  Surget,  19  How.  303 ;  s.  c.  1  Hemp.  715. 

Inadequacy  of  price  is  no  ground  for  setting  aside  a  sale  at  auction. 
Newman  v.  Meek,  1  Frccm.  Ch.  441  ;  Ilames  v.  Coales,  1  Dev.  Eq.  420. 


FRAUD  PRESUMED.  189 

half  the  value,  the  inequality  was  deemed  bj  the  civil  law 
Icesio  and  relief  was  afforded.  There  is  however  no  rule  in 
our  own  law  as  to  what  difference  between  the  real  value  of 
property  and  the  consideration  given  constitutes  inadequacy  of 
price.  This  the  judge  must  decide.^*  In  most  cases,  however, 
perhaps  a  sale  at  half  price  might  be  sufficient  to  induce  the 
court  to  set  aside  a  transaction,  if  there  is  no  ground  for  sug- 
gesting that  bounty  was  intended.^  When  bounty  is  intended, 
there  is  no  room  for  the  inference  of  fraud  from  the  inadequacy 
of  the  price;  love  and  affection  will  alone  support  the  convey- 
ance without  any  pecuniary  consideration,  and  will  equally 
support  it  where  tliere  is  a  pecuniary  consideration  wholly 
inadequate  to  the  value  of  the  property.^ 

The  fact  that  a  transaction  may  have  been  improvident  or 
precipitate,  oi»  may  have  been  entered  into  without  inde- 
pendent professional  advice,  is  as  immaterial  as  mere  inade- 
quacy of  consideration,  if  the  parties  were  on  equal  terms  and 
in  a  situation  to  act  and  judge  for  themselves,  and  fully  under- 
stood the  nature  of  the  transaction,  and  no  evidence  can  be 
adduced  of  the  exercise  of  undue  influence  or  oppression.*  f 
But  inadequacy  of  consideration  or  the  absence  of  independent 
professional  advice  becomes  a  most  material  circumstance 
where  one  of  the  parties  to  a  transaction  is  from  age,  igno- 
rance, distress,  incapacity,  weakness  of  mind,  body,  or  dis- 

Ves.  516;  Day  v.  Newnan,  2  Cox,  80;  *  Whalleyw.  Whalley,  1  Mer.  446. 

Burrowcs  v.  Lock,  lO  Ves.  474,  per  Sir  *  Meredith  v.  Saunders,  2  Dow.  514; 

W.  Grant.  Blackie  v.  Clark,  15  Beav.  595;   Ilarri- 

'  See  Nott  v.  Hill,  2  Ch.  Ca.    120;  son  v.  Guest,  0  D.  M.  &  G.  434,  8  H.  L. 

Butler  V.  Miller,  L.   R.  1  Ir.  Eq.  194;  481;  Denton  v.  Donner,  23  Beav.  291; 

but  see  2  Madd.  421  n.  Toker  v.  Toker,  31  Beav.  629,  82  L.  J. 

""  Builer  V.  Miller,   L.  R.  1   Ir.  Eq.  Ch.  322. 
194. 


*  Butler  V.  Haskell,  4  Dessau.  651 ;  Wild  v.  Rees,  48  El.  428;  Wester- 
velt ».  Mathcson,  1  Hoff.  Ch.  37. 

t  Green  v.  Thompion,  3  Ircd.  Eq.  305  ;  Dunn  v.  Chambers,  4  Baib.  376 ; 
Jouzin  V.  Toulinia,  9  Ala.  663. 


190  FRAUD  PRESUMED. 

position,  or  from  humble  position  or  other  circumstances, 
unable  to  protect  himself.  In  all  such  cases,  whatever  be  the 
nature  of  the  transaction,  the  onus  of  proof  rests  on  the  party 
who  seeks  to  uphold  it  to  show  that  the  other  performed  the 
act  or  entered  into  the  transaction  voluntarily  and  delib- 
erately, knowing  its  nature  and  effect,  and  that  his  consent 
to  perform  the  act  or  become  a  party  to  the  transaction  was 
not  obtained  by  reason  of  any  undue  advantage  taken  of  his 
position  or  of  any  undue  influence  exerted  over  him.^  *  The 
mere  fact,  however,  that  one  of  the  parties  may  be  an  illiterate 
person  or  a  man  of  advanced  age,  or  may  be  in  bad  health,  or 
in  distress,  or  pecuniary  embarrassment,  will  not  vitiate  a  trans- 
action, even  although  it  may  have  been  founded  on  an  inadequate 
consideration,  and  no  independent  advice  may  have  been  had, 
if  it  appear  on  the  face  of  the  evidence  that  he  was  fully  com- 
petent to  form  an  independent  judgment  in  the  matter,  and 
became  a  party  to  the  transaction  deliberately  and  advisedly, 
knowing  its  nature  and  effect.     The  onus  rests  on  the  party 

*  Ardglasse  v.  Muschamp,  1  Vern.  wan,  LI.  &  G.  47 ;  Dent  v.  Bennett,  4  M. 

236;   Clarkson  v.  Hanway,  2  P.  Wms.  &  C.  273;  Ahenrne  v.  Hogan,  Dru.  310; 

203;  Proof  y.  Ilines,  Forrest,  111;  How  Garvey  v.  M'Minn,  9  Ir.  Eq.  526;  Gib- 

V.    Weldon,    2    Ve3.    516;    Gartside    v.  son  *.  Russell,  2  Y.  <fe  C.   C.  C.    104; 

Isherwood,  1  Bro.  C.  C.  559;   Evans  n.  Sturge  v.  Sturge,  12  Beav.  244;  Cockell 

Llewellin,  1  Cox,  333;  Murray  «  Palm-  v.  Taylor,  15  Beav.  115;   Cooke  v.  La- 

er,  2  Sell.  &  Lef.  486;  Morse  v.  Royal,  motte,  ib.  234;  Longiiiate  v.  Ledger,  2 

12'  Ves.    373;  Pickett  v.   Loggan,    14  Giff.    157;   Grosveuof  v.  Sherratt,   28 

Ves.  231 ;  Falkner  v.  O'Brien,  2  Ba.  &  Beav.  659;  Smith  v.  Kay,  7  H.  U  750 

Be.  220;  Griffith  v.  Bobbins,  3  Madd.  Prideaux  v.  Lonsdale,  1  D.  J.  &  G.  433 

191;  Wood  y.  Abrey, /6.  417;  Wilhui  y.  Summers    v.    Griffith,    35    Be  iv.    27 

Willan,  2  Dow.  274;   Collins  v.  Hare,  2  Rhodes  v.  Bate,  L.  R.  1  Ch.  App.  252 

Bligli's  X.  S.106;  M'Diiriuid  '■.  ^M'lJiar-  Tate  v.  Williamson,  L.  R.  2  Ch.  App. 

mid,  3  Bligli's  X.  S.  374 ;   Williams  v.  65. 
Smith,  7  L.  J.  Ch.  129;  Bowea  v.  Kir- 


*  ISTeely  v.  Anderson,  2  Strobh.  Eq.  2G2 ;  Maddox  v.  Simmons,  31  Geo. 
512;  Wormack  v.  Rogers,  9  Geo.  GO;  Mann  11.  Betterly,  21  Vt.  326; 
Holmes®.  Fresh,  9  Mo.  201 ;  George  v.  Ricliardson,  Gilmer,  230;  Hawley 
t'.  Cramer,  4  Cosv.  717 ;  Hall  v.  Perkins,  3  Wend.  626 ;  Howard  v.  Eddll, 
17  Vt.  9;  Holden  v.  Crawford,  1  Aik.  390;  McKinney  v.  Piuckaid,  2 
Leigh,  149  ;  Todd  v.  Grove,  33  Md.  183. 


FRAUD  PRESUMED.  191 

impeaching  the  transaction  to  show  that  coercion  was  used  or 
undue  influence  was  exercised.^  There  can  be  no  title  to 
relief  on  the  ground  of  advantage  taken  of  distress  where  tlie 
advantage  or  disadvantage  of  the  transaction  is  to  be  the 
result  of  future  contingencies,  and  is  not  within  the  view  of 
the  parties  at  the  time.^  * 

A  mere  false  statement  of  the  consideration  does  not  of 
itself  necessarily  vitiate  a  deed/  but  there  may  be  cases  where 
a  false  statement  of  the  consideration  may  of  itself  destroy  the 
whole  transaction.*  The  general  rule  is  that,  where  no  con- 
sideration is  expressed  in  a  deed,  a  party  may  aver  and  prove 
consideration  in  support  of  it,  and,  where  a  consideration  is 
expressed,  a  man  may  still  aver  other  considerations  not  incon- 
sistent therewith.^  "Where,  however,  the  consideration  ex- 
pressed in  a  deed  is  impeached  on  the  ground  of  fraud,  the 
party  claiming  under  the  deed  cannot  aver  in  its  support  con- 
siderations different  from  that  expressed.®  If  the  transaction 
on  which  a  deed  pui'ports  to  be  founded  and  the  consideration 
for  which  it  was  executed,  appear  to  be  untruly  stated,  the 
instrument  may,  if  the  untruth  would  operate  fraudulently, 
lose  all  its  binding  quality  in  equity  even  though  it  be  con- 
clusive at  law.'  If  a  deed  states  on  its  face  a  pecuniary 
consideration,  a  party  cannot,  if  it  be  impeached,  set  up  con- 

'  Lewis  V.  Pead,    1   Ves.    Jr.    19;  '  Bowen  w.  Kirwan,  LI.  <fe.  G.  4*7, 

Leym  v.  Home,  16  W.  R.  824;  M'Neill  *  lb.     Upiungton  v.  Bullen,  2  Dr.  & 

V.  Cahill,  2  Bligh,  228  ;  Pratt  v.  Barker,  War.  184 ;  Gibson  v.  Russell,  2  Y.  &,  C. 

1  Sim.   1;    Hunter  v.  Atkins,  3  M.  &  K.  C.  C.  104. 

113;  Purdie  v.  Millett,  Taml.  31 ;  Rich-  *  Ilartopp  v.  Hartopp,  17  Ves.  192; 

ards  V.  Curlewis,  3  Eq.  Rep.  278;  Cur-  Clifford  >'.  Turrell,  1  Y.  <fe  C.  C.  C.  ISs', 

zon  V.  Belwortli}^  3  H.  L.  742  ;  Ilairi-  affd.  14  L.   J.  Ch.  39;  Nixon  v.  Ilamil- 

son  V.  Guest,  6  I).  M.  &  G.  434,  8  II.  L.  ton,  2  Dr.  &,  Wal.  387,  and  cases  cit.  2 

481 ;  see  Ilovenden  v.  Lord  Annesle}',  2  P.  Wms.  204. 

Sell.  &  Lof.  007,  639;   Price  v.  Price,  I  U'larkson  v.   Hanway,  2  P.  Wms. 

D.  M.  &,  G.  308;   but  see  Cooke  v.  La-  203;  Bridgman  v.  Green,  2  Ves.  627; 

niotte,  15  Beav.  234.    Comp.  Murray  v.  "VVatt  v.  Grove,  2  Sch.  &  Lef.  501 ;  VVil- 

Palmer,  2  Sch.  &  Lef.  4SG.  Ian  v.  Willan,  2  Dow.  274. 

"  Ramsbottom  v.  Parker,  6  Madd.  6.  '  Watt  v.  Grove,  2  Sch.  &  Lef.  5(H. 


*  Farnam  i\  Brooks,  9  Pick.  213  ;  White  v.  Flora,  2  Overton,  42G. 


102  FRAUD  PRESUMED. 

siderations  of  blood  or  natural  love  and  affection.^  Where, 
liowever,  the  recitals  stated  a  peeiiniarj  consideration  as  the 
foundation  of  a  deed,  and,  in  the  operative  part,  love  and 
affection  were  introduced  as  being  partly  the  consideration*  on 
which  the  deed  was  founded,  the  court  would  not,  from  this 
circumstance  alone,  presume  fraud.^ 

In  dealiugs  between  parties,  one  of  whom  is  subject  to  the 
influence  of  the  other,  there  nmst  be  upon  the  face  of  the  deed 
itself  a  fair  and  correct  statement  of  the  transaction.  If  the 
statement  as  to  the  consideration  is  not  true,  the  transaction 
cannot  be  supported.  A  consideration  partly  of  the  considera- 
tion stated  in  the  deed  and  partly  of  something  else,  is  not 
consistent  with  the  consideration  stated  on  the  face  of  the 
deed.  It  is  not  open  to  the  party  who  seeks  to  uphold  it  to 
give  such  evidence  to  sustain  the  deed.^ 

The  statement  of  consideration  where  there  was  in  fact 
none,  or  the  untrue  statement  of  the  consideration  or  other 
circumstances  of  a  suspicious  nature,  may  be  sufficient  to  shift 
the  burthen  of  proof  from  the  party  impeaching  a  deed  upon 
the  party  upholding  it.* 

The  jurisdiction  of  the  court  in  relieving  against  transac- 
tions on  the  ground  of  undue  influence  has  been  exercised  as 
between  a  medical  man  and  a  patient ;  ^  as  between  the  keeper 
of  a  lunatic  asylum  and  a  patient  under  his  care;®  as  between 
a  minister  of  religion  and  a  'person  under  his  spiritual  influ- 


'  Cla'-kson  V.  Hanway,  2  P.  Wms.  rison  v.  Guest,  6  T>.  M.  <fe  G.  434,  8  H 

203;  Willaii  v.  Willan,  2  Dow.  282.  L.  481. 

'^  FHnuT  V.  Gott,  4  Bro.  P.  C.  230;  ^  Dent  v.  Bennett,  4  M.  <fe  C.  269; 

Whalley  v.  Whalley,  3  Blinb,  13.  Ahearne  v.  Hoi-aa,  Dru.  310;  Gib  on  v. 

'  Ahearne  ;■.  Ilogan,  Dru.  310;  Up-  llussell,  2  Y.  ct  C.  C.  C.  104;  I'eacockw 

pington  V.  Bullen,  2  Dr.  <fe  War.  184;  Kernot,  8  L.  T.  292;   Allen   v.  Davis,  4 

Cliilord  )'.   Tiirrell,   1  Y.   &  C.  C.   G.  Deg.  &  Sm,  133;  Eillage  v.  Southee,  9 

138;  Gibson  v.  Russell,  2  Y.  <fe  G.  C.  C.  Ha.  540.     See  Pratt  v.  Parker,  4  lluss. 

104.  507;    Pophain    v.  Brooke,    5    Russ.  9; 

*  Watt  V.  Grove,  2  Sch.  &  Lef.  492,  Biackie  v  Clarke,  15  Beav.  595 ;  Purler 

502;  Griffiths  v.  Robbins.  3  Madd.  191 ;  v.  Laue,  29  L.  T.  2. 

Gibson  V.  Russell,  2  Y.  &  C.  C.  C.  104;  »  Wright  v.  Proud,  13  Yes.  136. 
Ahearne  v.  Hogan,  Dru.  310.    See  Har- 


FRAUD  PEESUMED.  193 

ence;*  as  between  a  spiritualist  medium  and  an  old  lady;^ 
as  between  a  young  man  in  tlie  army,  just  come  of  age, 
and  liis  superior  officer;^  as  between  husband  and  wife ;^  as 
between  a  man  and  a  lady  to  whom  he  was  about  to  be  mar- 
ried;^ as  between  a  man  and  a  woman  with  whom  he  was 
living;^  as  between  brother  and  sister;'  as  between  two 
brothers ;  ^  as  between  an  elder  and  a  younger  brother  just  come 
of  aire :  ®  as  between  two  sisters :  ^^  as  between  an  uncle  and 
his  nephew/^  who  was  deaf  and  dumb  ;^^  as  between  an  uncle, 
who  was  in  such  a  state  of  bodily  and  mental  imbecility  as 
rendered  him  incapable  of  transacting  business  requiring  de- 
liberation and  reflection,  and  a  nephew ;  ^^  as  between  nephew 
and  aunt,"  or  aunt  and  niece ;  ^^  as  between  a  young  man  just 
come  of  age  and  a  man  who  had  acquired  an  influence  over 
him  during  his  minority  ;^''  as  between  a  young  man  of  intem- 
perate habits  and  a  person  with  whom  he  was  living;"  as 
between  an  unmarried  woman  and  her  brother-in-law ;  ^^  as 
between  an  old  lady  and  a  woman  living  with  her  in  the 


'Norton   V.   Relly,    2   Eden,    286;  «  Sturge  w.  Sturge,  12  Beav.  229. 

Ilno-ucniii  v.  I'.asley,  14  Ves.  273;  IVlid-  °  Sercome   v.    Saunders,    34  Beav. 

dlefori   V.   Sherburne,  4   Y.   &  0.  358;  382. 

W'hyte  ".  Meade,  2  Ir.  Eq.  420 ;   Not-  "  Harvey  v.  Mount,  8  Beav.  439. 

tid""e   V.   Prince,    2   Giff.   i!46.     Comp.  "  Tate  v.  Williamson,  L.  R.  2  Ch. 

Kir\VMn   v.  Cullen,    4   Ir.   Ch.  322 ;    re  App.  56. 

Metcalfe,  2  D.  J.  &  S.  122.     See  also  "  Ferres  v.  Ferres,  2   Eq.  Ca.   Ab. 

Thompson  v.  Ileffernan,  4  Dr.  &  War.  695.     Comp.  Farmer  v.  Farmer,  1  H. 

286  L-  '724;   Vickers  v.   Bell,  9  L.  T.  N.  S. 

■'  Lvon  V.  Home,  16  W.  R   824.  600. 

'  Lloyd  V.  Clarke.  6  Beav.  309.  "  Willnn  v.  Willan,  2  Dow.  274. 

*  Ljinbert  v.  Lambert,  2  Lro.  P.  C.  "  Griffiths  i'.  Robbins,  3  Madd.  191; 

18;  Peel''. ,  16  Ves.  157;   Prices.  Cooke  »;.  L:imotte,  15  Beav.  241.     See 

Price.   1   i).  M.   &  G.   308;    Boyse  v.  Pratt  v.  Barker,  1   Sim.   1,  4  L.  J.  Ch. 

Russborough,  3  Jur.  373 ;  Proctor  v.  149 ;   Wlialley  v.  Whalley,  3  Bligh,  1 ; 

Robinson,  35  Beav.  335.    See  Nedby  v.  Toker  v.  Toker,  31  Beav.  629,  32  L.  J. 

Nedby,  5  Deg.  &  S.  377 ;  Coulsoav.  Al-  Ch.  322. 

lison,'2  D.  F.  &  J.  521.  '^  Anderson  v.  Ellsworth,  3  Giff.  154. 

°'Pa;;e  r.  lloriie,  11  Beav.  227,235  '"  Grosvenor  v.  Sherratt,   28  Beav. 

Cobbett"''.  Brock,  20  Beav.  525.  661 ;   Smith  v.  Kay,  7  H.  L.  750.     See 

*  Coul^oii  If.  Allison,  2  D.  F.  &  J.  Aylw  rd  v.  Kearney,  2  B.  A  B.  468. 
621.  See  Farmer  v.  Farmer.  111.  L.  "  Terry  «;.  Wacher,  15  Sim.  447. 
724  ;  Gar\  ey  n.  M'Minn,  9  Ir.  Eq  526.               "  Rhodes  v.  Bate,  L.  11.  1  Ch.  Ap. 

'  Sharp  y.  Leach,  31  Beav.  491.  252. 


194  FEAUD  PRESUMED. 


capacity  of  a  companion  or  domestic;  ^  as  between  a  child  and 
an  imbecile  parent ;  ^  and  in  otlier  cases.' 

The  principle  upon  wliicli  the  court  sets  aside  transactions 
on  the  ground  of  undue  influence  only  applies  to  cases  where 
some  lawful  relation  has  been  constituted  between  the  par- 
ties.* Where,  accordingly,  a  woman,  while  living  in  adultery 
with  a  married  man,  assigned  certain  property  to  secure  a 
debt  which  he  owed,  the  court  would  not,  from  tlie  mere 
existence  of  the  relation  presume  undue  influence,  the  woman 
being  of  mature  intelligence,  and  the  transaction  having  been 
entered  into  deliberately.^ 

Transactions  even  between  mortgagor  and  mortgagee  are 
looked  on  with  jealousy  where  a  mortgagor  in  embarrassed 
circumstances,  and  under  pressm-e,  sells  the  equity  of  redemp- 
tion to  the  mortgagee  for  a  sum  considerably  less  than  its 
value.®  * 

In  the  application  of  the  principles  of  the  court,  there  is 
no  distinction  between  the  case  of  one  who  himself  exercises 
a  direct  influence,  or  of  another  who  makes  himself  a  part;y 
with  the  person  who  exercises  the  undue  influence.' 


'  Cole  V.  Gibson,  1  Ves.  503  ;  Bate  477  ;  D'Arcy  v.  D'Arcy,  Hay  &  J.  115  ; 

V.  Bank  of  Enn-land,  9  Jur.  545  Longmate  v.  Ledger,  2  Oiff.  1  57  ;   Cus- 

=  Whelanz).  Whelan,  3Co\v.  (Amer.),  tance    v.   Cunuingbam.    13  Beav.   363; 

538    See  Gardner  V.  Gardner,  22  Wend.  Douglas  v.   CulverweH,    31   L.  J.    Ch. 

(Amer.).     Conip.  Beanland  v.  Bradley,  543  ;  Clark  v.  Jlalpas,  ib.  696;  Baker  v. 

2  Sm.  &  G.  339.  Monk.  10  Jur.  N.  S.  091 ;    I'rideaux  v. 

"  Brooks  V.  Gaily,  2  Atk.  34;  Bollw.  Lonsdale,  1  D.  J.  &  S.  439;  Williams  v. 

Howard,  9  Mod.  302;  Osmond  v.  Fitz-  Bauley,  L.  R.  1  A|>p.  Ca.  200;  Tate  ». 

roy,   3  P.  W.  129;   How  v.  Weldon,  2  Willi imson,  L.  R.  1  Eq.  528. 
Ves.   51  (i;   Evans?;.  LlewelUn,  1  Cox,  ^  Hargreave  v.Everurd,  6  Ir.Ch.  278. 


833;  Wood  v.  Abrey,  3  Madd.  417 
Hudson  V.  Beauchamp,  cit.  3  Bli;;h,  18 
Collins  V.  Hare,  2  Bligh's  N.  S.  106 
M'Diarinid  v.  M'Diarmid,  3  Bligh's  N.  S, 


lb. 

«  Ford  V.  Oldeu,  L.  R.  3  Eq.  461.  See 
Webb  V.  Rorke,  2  Sell.  &  Lei.  661; 
Hickes  v.  Cooke,  4  Dow.  16. 


374;  Aylward  v.  Kearney,   2  B.  <fe  B.  •>  Ardglasse   v.   Pitt,  1    Vern.    238; 


*  Baugher  v.  Merryman,  32  Md.  185;  Sheckell  v.  Hopkins,  2  Md.  Ch. 
90;  Dougherty  r.  McColgan,  6  G.  &  J.  275 ;  Thompson  r.  Lee,  2  Ala.  292; 
Conway  v.  Alexander,  7  Cranch,  218. 


FRAUD  UPON  THIRD  PARTIES.  195 

The  difficulty  of  defining  the  point  at  wliieli  influence  ex- 
erted over  the  mind  of  a  testator  becomes  so  pressing  as  to 
be  properly  described  as  coercion  is  greatly  enhanced  wlien 
the  question  is  one  between  husband  and  wife.^  The  pre- 
sumption of  undue  influence  exercised  by  a  husband  over  a 
feeble  dying  wife  is  however  far  stronger  than  when  a  similar 
charge  is  made  against  a  wife  in  respect  of  her  deceased  hus- 
band.^ 

Whether  a  transaction  can  be  set  aside  on  the  ground  of 
undue  influence,  where  the  influence  has  been  exercised  not 
by  the  party  obtaining  the  benefit,  but  by  a  third  person, 
appears  to  be  doubtful.' 


SECTION  IV.-FRAUD  UPON  THIRD  PARTIES. 

Another  class  of  frauds  against  which  relief  may  be  had 
in  equity  is  where  a  contract  or  other  act  is  substantially  a 
fraud  upon  the  rights,  interests,  or  intentions  of  third  parties. 
The  general  rule  is  that  particular  persons  in  contracts  and 
other  acts  shall  not  only  transact  hond  fide  between  them- 
selves, but  shall  not  transact  mala  fide  in  respect  to  other 
persons  who  stand  in  such  a  relation  to  either  as  to  be  afl'ected 
by  the  contract  or  the  consequences  of  it.*  Collusion  between 
two  persons  to  the  prejudice  or  loss  of  a  third  is  in  the  eye  of 
the  court  the  same  as  a  fraud.' 


Espey  V.  Lake,  10  Ha.  260;  "Wyse  v.  »  Clarke  v.  Sawyer,  3  Sandf.  (Amer.) 

Lambert,  16  Ir.  Cli.  379,  n'lpm,  p.  152.  357. 

'  Boyse  v.  Ilussboroujvh,  3  Jur.  N.  S.  '  Bentlcy  v.  Mackay,  31  Beav.  143. 

373,  377.     See  Price  v.  Price,  1  D.  M.  See  Wyclierley  v.  Wycherley,  2  Eden, 

<fe.G.  308;    Gardner    v.   Gardner,    22  175. 

Wend.  (Ainer.)  526;  Clarke  i;.  Sawyer,  *2  Ves.   156,  157,   per  Lord  ITard- 

3  Sandf.  (Ainer.)  351.     Corap.  Middle-  wicke;  Wallis  v.   Duke  of  Portland,  3 

ton  V.  Itiiddleton,  IJ.  &  W.  94.  Ves.  502. 

'  Garth  v.  Cotton,  1  Dick.  217. 


196  FRAUD  UPOX  THIED  PARTIES. 


FRAUD  UPON  CREDITORS. 

A  class  of  frauds  ^  coming  under  the  head  of  fraud  upon 
third  parties  embraces  all  those  agreements  or  other  acts  of 
parties  which  tend  to  delay,  deceive,  or  defraud  creditors. 
Transactions  of  the  sort  are  void  at  common  law,^  *  but  the 

•  Pope  V.  Wilson,  1  Ala.  690.  Copis  v.  Middleton,  2  Madd.  428;   Bar- 

•  Cadoo-an    v.   Kennet,    Cowp.    432;       ton  v.  Vanheythuj-sen,  11  Ha.  132. 


*  The  statute  must  be  received  as  a  true  and  accurate  declaration  of 
what  the  common  law  was.     Clark  v.  Douglass,  62  Penn.  408. 

A  debtor  has  the  right  to  pay  his  debt  to  an  insolvent  creditor  in 
order  to  defeat  an  attachment  which  he  knows  is  about  to  be  laid  in  his 
hands,  and  the  court  will  not  inquire  into  the  motive  which  prompted  its 
payment.    Simpson  r.  Dall,  3  Wall.  4G1 ;  Chamberlain  r.  Pillsbury,  35  Vt.  16. 

A  conveyance  by  a  /emme  sole  on  the  eve  of  marriage  is  not  fraudulent 
against  her  husband's  creditors.  Prior  t.  Kinney,  6  3Iunf.  610;  Laud  «. 
JeQries,  5  Rand.  211. 

A  conveyance  in  fraud  of  one  creditor  is  void  as  to  all  creditors.  Hoke 
V.  Hendtrsoa,  2  Dev.  12. 

Any  agreement  entered  into  by  a  debtor  with  a  view  to  deprive  hia 
creditors  of  his  future  earnings,  and  enal^le  him  to  retain  and  use  them 
for  his  own  benefit  and  advantage,  is  fraudulent.  Tripp  r.  Childs,  14 
Barb.  85. 

All  conveyances  for  the  use  of  the  grantor  are  fraudulent  and  null 
against  creditors.  Mackie  r.  Cairns,  1  Hopk.  373;  s.  c.  2  Cow.  54;  Wil- 
son V.  Cheshire,  1  McCord's  Ch.  233  ;  Brown  v.  Donald,  1  Hill's  Ch.  297 ; 
Jackson  v.  Parker,  9  Cow.  73;  Van  Wyck  r.  Seward,  18  Wend.  375; 
Lukin  V.  Aird,  6  Wall.  78;  Smith  r.  Smith,  11  N.  H.  460. 

A  conveyance  upon  trusts  of  a  loose  and  indefinite  nature,  and  control- 
able  by  the  grantor,  is  fraudulent.  Burbank  r.  Hammond,  3  Summer 
429. 

A  sale  of  property  by  an  insolvent  debtor  for  long  notes  is  fraudulent. 
Pope  r.  Andrews.  1  Smed.  &  l\Iar.  Ch.  135 ;  Kepner  v.  Burkhart,  5  Barr, 
478;  Borland  r.  Walker,  7  Ala.  269;  Grannis  v.  Smith,  3  Humph.  179; 
Mitchell  V.  Beal,  8  Yerg.  134. 

A  deed  of  articles  consumable  in  their  use  is  void  on  its  face  against 
creditors.  Hunter  v.  Foster,  4  Humph.  211 ;  Wade  r.  Green,  3  Humph. 
547;  Charlton  v.  Leay,  5  Humph.  493;  Richmond  r.  Curdup,  1  Meigs, 
581. 

A  judgment  voluntarily  confessed  by  an  insolvent  debtor  for  more 


FEATID   UPON  THIRD  PARTIES.  197 

legislature  with  the  view  of  affirming  the  rule  and  c-arrying 
the   principles  of  the   common   law   more   fully   into   cffiset. 


than  is  due  is  prima  fucie  fraudulent.  Clark  v.  Douglass,  G2  Penn.  408: 
Sewnll  V.  Russell,  2  Paige,  175. 

If  a  plaintiff  to  an  execution  places  it  in  the  hands  of  the  sherifi"  with 
any  other  view  than  that  of  having  it  lond  fide  executed,  it  is  not  valid 
against  fjUbsequent  executions.  Weir  «.  Hale,  3  W.  &  S.  285 ;  Matthews 
«.  Wame,  6  Halst.  295. 

A  mortgage  made  by  an  insolvent  debtor  which  covers  more  property 
than  is  necessary  to  secure  the  mortgage  debt,  is  fraudulent.  Bailey  v. 
Burton,  8  Wend.  339;  Mitchell  v.  Beal,  8  Yerg.  134;  Cennett  ®.  Union 
Bank,  5  Humph.  612  ;  see  Downs  \\  Kissam,  10  How.  102. 

A  mortgage  made  in  good  faith  to  secure  future  advances  is  not  fraud- 
ulent. United  States  t.  Hoe,  3  Cranch,  73;  Wilson  v.  Russell,  13  Md. 
494  ;  Lansing  v.  Woodworth,  1  Sandf.  Ch.  43 ;  Hendricks  v.  Robinson,  2 
Johns.  Ch.  283. 

The  length  of  time  which  a  mortgage  has  to  run  may  in  connection 
with  other  facts  be  evidence  of  fraud.  Spalding  t.  Fisher,  57  Me.  411; 
Croft?  V.  Arthur,  3  Dessau.  223 ;  Mitchell  t\  Beal,  8  Yerg.  134. 

A  purchase  in  the  name  of  a  third  person  with  intent  to  defraud  the 
creditors  of  the  purchaser,  may  be  set  aside.  Guy  «.  Paris,  7  Yerg.  155 ; 
Kimmel  v.  Mesright,  2  BaiT,  38 ;  Guthrie  %\  Gardner,  9  Wend.  414  ;  Far- 
row V.  Teackle,  4  H.  J.  271 ;  Wiss  «.  Trijjp,  1  Shep.  9;  Peay  v.  Sublet,  1 
Mo.  449;  Coleman  v.  Cocke,  6  Rand.  G18;  Elliott  x.  Horn,  10  Ala.  355. 

A  purchase  in  the  name  of  a  third  person  can  not  be  declared  void  in 
an  action  at  law  by  a  purchaser  under  a  judgment.  Howe  \\  Bishop,  3 
Met.  26  ;  Dolkray  v.  Mason,  48  Me.  178. 

A  reconveyance  by  the  grantee  under  a  fraudulent  deed  is  fraudulent 
as  to  his  creditors.     Chapin  v.  Pease,  10  Ct.  69. 

A  mortgage  made  by  the  mortgagor  after  the  execution  of  a  fraudulent 
deed  is  valid  and  binds  the  property.     Fox  v.  Clark,  Walker's  Ch.  535. 

A  fraudulent  conveyance  is  void  in  toto^  and  not  jjartly  valid  and 
partly  void.  Wlien  a  deed  is  made  void  by  statute,  it  is  void  throughout. 
]Mackie  r.  Cairns,  1  Hopk.  373 ;  s.  c.  5  Cow.  547 ;  Kirby  v.  lugersoll,  Barr- 
ing's Ch.  172 ;  Hyslop  v.  Clark,  14  Johns.  464 ;  Weedon  v.  Hawes,  10  Ct. 
50  ;  Tickner  v.  Wishall,  9  Ala  305. 

A  judgment  recovered  after  the  execution  of  the  fraudulent  convey- 
ance is  a  lien  upon  the  land,  except  as  against  honfifide  purchasers,  Man- 
hattan Co.  r.  Evertson,  6  Paige,  457. 

A  fraudulent  deed  set  aside  at  the  instance  of  creditors,  does  not  bar 
the  surviving  wife  of  dower  as  against  creditors  or  purchasers  under  a 
mere  decretal  sale.  Dugan  v.  Massey,  6  Bush,  81 ;  Goodworth  r.  Paige,  5 
Ohio  St.  R.  70 ;  Summers  v.  Bebb,  13  111.  483 ;  Stribling  v.  Ross,  16  III 


198  FRAUD  UPOX  TfllED  PAETIES. 

declared  by  statutes  50  Edw.  Ill,  c.  G,  and  3  nen.  YII,  c.  4,  all 
fraudulent  gifts  of  goods  and  chattels  in  trust  for  the  donor 
and  to  defraud  creditors  to  be  void ;  and  by  13  Eliz.  c.  5,  all 
gifts,  grants,  and  conveyances  of  goods,  chattels,  or  land, 
made  with  an  intent  to  hinder,  delay,  or  defraud  creditors 
were  rendered  void  as  against  the  person  to  whom  such 
frauds  would  be  prejudicial.^  Estates,  however,  or  interests 
in  land  or  chattels  conveyed  or  assured  lond  fide  and  upon 
good  consideration,  without  notice  of  any  fraud  or  collusion, 
are  excepted  from  the  operation  of  the  statute.^ 

The  statute  13  Eliz.  c.  5,  does  not  declare  voluntary  con- 
veyances to  be  void,  but  only  declares  all  fraudulent  convey- 


'  Tarleton  v.  LiddeU,  17  Q.  B.  391.  ""  13  Eliz.  c,  5,  §.  6.     See  Tarloton  v. 

Liddell,  17  Q.  B.  390,  4  Deg   &  S.  538. 


123;  Pixley  v.  Bennett,  11  Mass.  298;  Robinson  v.  Bates,  3  Met.  40 ; 
Randolph  r.  Doss,  3  How.  (Miss.)  205 ;  contra  Manhattan  Co.  v.  Evertson, 
6  Paige,  457. 

A  purchaser  at  a  sale  under  an  execution  is  clothed  with  all  the  rights 
of  the  judgment  creditor.  Sands  t.  Hildreth,  2  Johns.  Ch.  35 ;  s.  c.  14 
Johns.  493 ;  Frakes  v.  Brown,  3  Blackf.  295 ;  Gray  v.  Tappan,  Wright, 
117  ;  Price  v.  Sykes,  1  Hawks,  87. 

A  fraudulent  conveyance  is  valid  against  all  parties,  except  creditors. 
Randall  v.  Phillips,  3  Mastm,  378 ;  Anderson  v.  Bradford,  5  J.  J.  Marsh. 
69;  "Woodman  v.  Bodfish,  25  Me.  317;  Morey  i\  Forsyth,  Walkers  Ch. 
465  ;  DelesdeiTiier  r.  Moary,  2  App  150. 

A  vendee  claiming  under  a  fraudulent  deed  gains  no  title  by  a  pur- 
chase under  an  execution.     Foulk  v.  M'Farlans,  1  W.  &  S.  297. 

A  wife  having  a  lawful  claim  for  alimony,  is  a  creditor.  Feigley  v. 
Feigiey,  7  Md.  537  ;  Boils  v.  Boils,  1  Cold.  284;  Flake  v.  Brown,  2  Blackf. 
295. 

A  person  having  a  claim  for  a  tort,  is  a  creditor.  Lillard  !-.  M'Gee,  4 
Bibb.  IGo  ;  Jackson  t.  Myers,  18  Johns.  425;  Farnsworth  v.  Bell,  5  Sneed, 
531;  Lavigford  r.  Fly,  7  Humph.  585;  Walradt  t\  Brown,  1  Gilmau,  397  ; 
contra,  Fowler  v.  Frisbie,  3  Ct.  320. 

The  act  applies  to  sureties  as  well  as  principal  debtors.  Yan  Wyck  v. 
SeTvard,  18  Wend.  375  ;  Howe  v.  Ward,  4  Greenl  195  ;  Hutchinson  r.  Kelly, 
1  Rob.  123;  Carlisle  v.  Rich,  8  N.  H.  44;  Russell  v.  Stinson,  3  Hey.  1; 
Thompson  v.  Thompson,  1  App.  244 


TEAUD  UPON  THIRD  PARTIES.  199 

ances  to  be  void.^  Whether  a  conveyance  be  fraudulent  or 
not  is  declared  by  the  statute  to  depend  upon  its  being  made 
"  upon  good  consideration  and  Ijond  jldeP  It  is  not  sufficient 
that  it  be  upon  good  consideration  or  hona  fide.  It  must  be 
both.  Although  a  deed  be  made  upon  good  consideration 
within  the  meaning  of  the  statute,  it  is  void  against  creditors, 
unless  it  be  hond  fide?  *  The  expression  "  good  considera- 
tion "  in  the  statute  means  valuable  consideration.  Meritorious 
consideration,  such  as  love,  affection,  &c.,  though  g^od  as 
between  the  parties  themselves,  is  not  in  the  eye  of  the  law 
hond  fide,  if  it  is  inconsistent  with  that  good  faith  which  is 
due  to  creditors.^  f  As  between  the  parties  themselves  and 
all  persons  claiming  under  them  in  privity  of  estate,  voluntary 
conveyances  are  binding,*  but  in  so  far  as  they  have  the  efiect 
of  delaying,  defrauding,  or  deceiving  creditors,  voluntary  con- 
veyances are  not  Ijond  fide,  and  are  void  as  against  creditors 
to  the  extent  to  which  it  may  be  necessary  to  deal  with  the 
property  to  their  satisfaction.  To  this  extent,  and  to  this 
extent  only,  they  will  be  treated  as  if  they  had  not  been  made. 
To  every  other  pm-pose  they  are  good.' 

'  Russell    V.  Hammond,   1  Atk.   13 ;  Fraser  v.   Tliompson,  4  D.   <fe  J.  600 

Dne  V.  Routledge,  Cowp.  708  ;  Cadoo-an  Corlett  v.  Radcliffe,  14  Moo.  P.  C.  l:il, 

V.  Kennett,   ib.  432,  434;  Ilolloway   v.  135. 

Millard,  1  Madd.  414 ;  Gale  v.  William-  ^  Copis  v.  Middleton,  2  Jladd.  430  ; 

son,  8  M.  &  W.  405.  Taylor  v.  Jones,  2  Atk.  600 ;   Strong  v. 

''Twyne's    Case,    3    Co.     Hep.    81;  Sti-on<r,   18  Beav.  408;    Goldsmith  «. 

Worsley  v.  De  Mattos,    1    Burr.   474,  Russell,  5  D.  M.  &  G.  547. 

475;  C'adogan  v.  Kennett,  Cowp.  434;  *  I'etre  v.  Espinasse,  2  M.  &  K.  496; 

Bott  V.  Smith,  21  Beav.  SKi;  llarman  Bell   v.    Cureton,  ib.    5(i3 ;    French   v. 

V.  RicharcU,  lU   Ha.   81  ;  Tliompson  v.  iM-eiich,  6  D.  M.  &  G.  95. 

Webster,  4  Drew.  (128  ;    7  Jiir.  N.   S.  ^  Curtis  v.  Price,  12  Yes.  103  ;  Wors- 

531 ;  Lloyd  v.  Attwood,  3  D.  &  J.  055;  ley  v.  i>e  Mattos,  1  Burr.  474  :  Bott  v. 


*  Whiting  V.  Johnson,  11  St.  R.  328;  Clements  v.  Mooic,  G  Wall.  229; 
Ashmead  r.  Hean,  13  Penn.  584. 

t  Edgington  r.  Williams,  Wright,  439 ;  Goodell  i-.  Taylor,  Wright,  82 ; 
O'Brien  v.  Coulter,  2  Blackf.  421 ;  Killough  i\  Steele,  1  Stew.  &  Port.  2G2. 

The  services  of  a  minor  son,  miloss  emancipated,  are  not  a  good  con- 
Bidcration.  Dick  t.  Grissom,  1  Freem.  428;  Brown  v.  McDonald,  1  Hiira 
Ch.  30G. 


200  FRAUD  UPOX  THIRD  PARTIES. 

A  deed  which  appears  to  be  voluntary  may  be  shown  by 
any  evidence  (consistent  with  its  terms)  to  have  been  made 
for  valuable  consideration,^  but  the  evidence  must  be  clear  and 
free  from  suspicion.^ 

It  is  not  enough,  in  order  to  support  a  settlement  against 
creditors,  that  it  be  made  for  valuable  consideration.  It  must 
also  be  hond  fide.  If  it  be  made  with  intent  to  delay,  hinder, 
or  defraud  creditors,  it  is  void  as  against  them,  although  there 
may  be  in  the  strictest  sense  a  valuable  or  even  an  adequate 
consideration.^  *     Cases  have  frequently  occurred,  in   which 

Smith,  21  Beav.  516 ;  Croker  v.  Martin,  v.  Williamson,  8  M.  k  TV.  405  ;  Kelson 

1  Bligh's  N.  8.  573  ;  French  v.  French,  v.   Kelson,   10   Ha.  385 ;    Townend  v. 

6  D.  M.  (fe  G.  95 ;  Neale  v.  Day,  28  L.  Toker,  L.   R.  1  Ch.   Ap.  446,  supra,  p. 

J.  Ch.  45.     See  Wakefield  v.  Gibbon,  1  192. 

Giff.  401 ;  Murphy  v.  Abraham,  15  Jr.  ^  Graham  v.  O'Keefe,  16  Ir.  Ch.  1. 

Ch.  371 ;  Shaw  v.  Jeffrey,  13  Moo.  P.  =  Twyne's   Case,  3  Co.  Rep.  81 ;  Hol- 

C.  432.  mes  v.  Penney,  3  K.  <fe  J.  99. 
»  Pott  V.  Todhunter,  2  Coll.  ^6 ;  Gale 


*  Cragg  V.  Martin,  12  Allen,  498 ;  Brady  v.  Briscoe,  12  J.  J.  Marsh. 
212 ;  Bozman  «.  Draughan,  3  Stew.  343 ;  Kempner  v.  Churchill,  8  Wall. 
362 ;  Ward  v.  Trotter,  3  Mon.  1  ;  Ayres  v.  Moore,  2  Stew.  336  ;  Trotter  r. 
Watson,  6  Humph.  509 ;  Peck  x.  Land,  2  Kelly,  1  ;  Farmers'  Bank  v. 
Douglass,  11  Smed.  &  Mar.  469;  Dacey  ».  Daniel,  1  Smith,  252;  Wright 
•c.  Brandis,  1  Carter,  336  ;  Carr  v.  Hill,  1  Stockt.  210 ;  Bum  i\  Ahl,  29  Penn. 
387;  Root  v.  Reynolds,  32  Vt.  139. 

A  deed  not  at  first  fraudulent  may  become  so  by  being  concealed  or 
not  pursued,  if  creditors  are  thereby  drawn  to  give  credit  to  the  grantor. 
Hildrcth  ».  Sands,  2  Johns.  Ch.  35 ;  Perins  i;.  Dunn,  3  Johns.  Ch.  508. 

A  conveyance  to  a  creditor  of  property  sufficient  to  pay  his  full  debt 
upon  condition  that  he  will  give  a  portion  to  the  grantor's  wife,  is  fraud- 
ulent.    Kissam  «.  Edmonston,  1  Ired.  Eq.  180 

A  subsequent  payment  will  not  give  validity  to  a  conveyance  that  was 
originally  fraudulent.  Poague  v.  Boyce,  6  J.  J.  Marsh.  70 ;  Lynde  v.  Mc- 
Gregor, 13  Allen,  213;  Hartman  v.  Diller,  62  Penn.  37;  Pettibone  i-. 
Stevens,  15  Ct.  19;  Thomas  v.  Goodwin,  12  Mass.  140. 

If  an  instrument  is  made  with  the  intent  to  hinder  and  delay  creditors, 
it  is  not  purged,  because  the  grantor  may  also  have  had  some  other  pur- 
pose in  view.     Reed  v.  Noxon,  48  111.  323 ;  Merry  v.  Bostwick,  1 3  111.  21. 

A  deed  which  misrepresents  the  transaction  which  it  recites,  and  the 
consideration  upon  which  it  is  founded,  is  liable  to  susi^icion,  but  if 
upon  investigation  the  real  transaction  appears  to  be  fair  though  some- 


FRAUD  UPOX  THIRD  PARTIES.  201 

persons  have  given  a  full  and  fair  price  for  goods,  and  wliere 
the  possession  has  been  actually  changed,  yet  being  done  for 
the  purpose  of  delaying  or  defeating  creditors  the  transaction 
has  been  held  fraudulent,  and  has  therefore  been  set  aside  as 
against  them.  ^  Though  there  be  a  judgment  against  the 
vendor,  and  the  purchaser  has  notice  of  it,  that  ftict  will  not, 
of  itself,  affect  the  validity  of  the  sale  of  personal  property. 
But  if  the  purchaser,  knowing  of  the  judgment,  purchases 
with  the  view  and  purpose  to  defeat  the  creditor's  execution, 
it  is  iniquitous  and  fraudulent,  notwithstanding  he  may  have 
given  a  full  price,  for  it  is  assisting  the  debtor  to  injure  the 
creditor.     The  question  of  fraud  depends  on  the  motive.'  * 

*  Holmes  v.  Penney,  3  K.   <fe  J.  99 ;  '1   Burr.  4*74 ;  Cowp.   434,  per  Lord 

Worsley  v.   De  Mattos,    1  Burr.  474,  Mansfield;    8   Taunt.    678,  per  Dallas, 

475 ;  Cadogan  v.   Kennett,  Cowp.  434 ;  G.  J. 
Harman  v.  Uichards,  10  Ha.  81. 


what  variant  from  tliat  which  is  described,  it  will  be  valid.  Shirras  v. 
Craig,  7  Cranch,  34 ;  Storer  v.  Harrington,  7  Ala.  143 ;  Frost  v.  Warren, 
42N.  Y.  204;  Hubbard  v.  Turner,  2  3IcLean,  519;  Bumi^ass  v.  Dotsou, 
7  Humph.  310. 

A  deed  absolute  in  form  but  intended  as  a  mortgage,  is  valid  if  made 
in  good  faith.  Chickering  v.  Hatch,  3  Sumner,  474 ;  Butler  v.  Stoddard, 
7  Paige,  168;  Smith  v.  Onion,  19  Vt.  427;  Halcombe  v.  Ray,  1  Ired.  340; 
contra,  North  v.  Belden,  13  Ct.  376;  Tift  v.  Walker,  10  N.  H.  150; 
Hadstior  v.  Williams,  31  Ala.  149. 

*  Lowry  v.  Pinson,  2  Bailey,  324 ;  Hickman  v.  Quinn,  6  Yerg.  36 ; 
Bullock  V.  Irving,  4  Munf  450;  Bird  v.  Aitken,  1  Rice's  Cb,  73;  Thorn- 
ton v.  Davenport,  1  Scam.  296  ;  Williams  v.  Jones,  2  Ala.  314;  Clemens  v. 
Davis,  7  BaiT,  263  ;  Petters  v.  Smith,  4  Rich.  Eq.  197. 

It  is  not  sufficient  that  a  creditor  knows  of  the  double  intent  of  the 
debtor  to  give  a  preference  and  to  defeat  other  creditors,  and  that  he  con- 
curs in  the  act  by  which  that  intent  in  both  its  aspects  is  effectuated.  He 
must  have  concurred  in  the  illegal  intent  before  he  can  be  involved  in  its 
consequences.  Ford  t\  Williams,  3  B.  Mon.  550 ;  Worland  v.  Kimberlin, 
6  B.  Mon.  608;  Brown  v.  Smith,  7  B.  Mon.  361. 

Notice  of  the  fraudulent  intent  before  the  payment  of  the  purchase 
money  will  make  the  conveyance  fraudulent.  Parkinson  v.  Hanna,  7 
Blackf  400 ;  Johnson  v.  Brandia,  1  Smith,  263 ;  White  v.  Graves,  7  J.  J. 
Marsh.  523. 

A  conveyance  can  not  be  impeached  by  proof  of  a  fraudulent  intent 
14 


2QQ  FRAUD  upo:j:  third  parties. 

The  consideration  of  marriage,  altliough  the  most  valuaHe 
of  all  considerations,  if  there  be  bond  fides^  will  not  support  a 
settlement  by  a  man  in  insolvent  or  embarrassed  circum- 
stances, if  there  be  evidence  to  show  that  the  intended  wife 
was  implicated  in  any  design  to  delay  or  defraud  the  cred- 
itors of  the  intended  husband,  or  that  the  marriage  was  part 
of  a  scheme  or  contrivance  between  them  to  protect  his 
property  against  the  claims  of  his  creditors.^* 

A  postnuptial  settlement  made  in  pm'suance  of  a  prior 
valid  written  agreement  is  valid  against  creditors.f  but  a 
parol  antenuptial  agreement  does  not  prevent  a  postnuptial 
settlement  from  being  voluntary.^  Kor  will  the  written 
recognition  after  marriage  of  a  verbal  promise,  made  before 


*  Campion  v.  Cotton,  17  Yes.  264;  *  Spurgeon  v  Collier,  1  Eden,  61; 

Ex-pnrte  M'Burnie,  1  D.  M.  <fe  G.  441;  Randall  v.   Morgan,  12  Ves.  67;  Las- 

Dilkes  V.  Broadmead,  2  D.  F.  <fe  J.  566.  sence  v.  Tieruey,  1  Mac.  &  G.  551 ;  Ez- 

"Culombine  w.  Pen  hall,  1  Sm.  «fr  G.  parte  M'Burnie,    1    D.  M.    <fe  G.  445; 

228;  Fraser  v.  Thompsjn,  4  D.  <fe  J.  Warden  v.  Jones.  2  D.  <fc  J.  76;  Goldi- 

600.     See  exrparte  M'Burnie,  1  D.  M.  &  cutt  v.  Townsend,  28  Beav.  445. 
G.  445. 


on  the  part  of  the  grantor,  unless  it  is  known  to  the  grantee.  Green  v. 
Tanner,  8  Met.  411;  Sands  r.  Hildreth.  14  Johns.  493;  Astor  r.  Wells,  4 
Wheat.  4G6;  Stover  r.  Herrington,  7  Ala.  142;  Yiolett  r.  Violett,  2  Dana, 
323 ;  Partsls  v.  Harris,  26  Ct.  480 ;  Splaun  v.  Martin,  17  Ark.  146 ;  Chou- 
teau r  Sherman,  11  Mo.  335  ;  Bancroft  t.  Blizzard,  13  Ohio,  30. 

Although  the  law  permits  a  failing  debtor  to  make  a  preference,  it 
denies  hiu-  the  right  while  doing  so  to  pro^-ide  that  unpreferred  creditors 
shall  never  be  paid.     Drury  t.  Cross,  7  Wall.  299. 

*  A  marriage  settlement  must  be  reasonable,  and  with  a  due  regard  to 
the  rights  of  othei-s.  If  it  is  di.~proportionate  to  the  means  of  the  grantor, 
it  is  fraudulent.  Simpson  r.  Graves,  Riley's  Ch.  292  ;  Croft  t.  Arthur, 
8  Dessau.  223. 

To  make  an  antenuptial  settlement  void  as  a  traud  upon  creditors,  it  is 
necessary  th  it  both  parties  should  concur  in  or  have  cognizance  of  the 
fraud.     Magniac  r.  Thompson,  7  Pet.  348. 

A  conveyance  by  the  grantee  under  a  fraudulent  deed  to  a  creditor  of 
the  grantor  for  the  purpose  of  recovering  his  debt,  is  valid.  Brown  v. 
Webb,  20  Ohio,  389. 

t  Magniac  r.  Thoaipson,  7  Pet.  348;  Lockwood  r.  Nelson,  16  Ala.  294. 


FRAUD  UPOK  THIRD  PARTIES.  203 

marriage,  support  a  postnuptial  settlement  against  creditors.' 
Postnuptial  settlements  are,  as  a  general  rule,  voluntary 
deeds,  and,  therefore,  void  as  against  creditors;'^-  but  in 
certain  cases  the  concurrence  of  a  stranger  may  deprive  a 
postnuptial  settlement  of  its  voluntary  character.'  So  also  a 
postnuptial  settlement  made  on  the  receipt  of  an  additional 
portion  is  a  settlement  for  valuable  consideration.*  The  fact 
that  a  postnuptial  settlement  may  be  founded  on  a  moral 
duty,  will  not  deprive  it  of  its  voluntary  character.'  In  cer- 
tain cases,  however,  a  settlement  made  upon  a  wife  after 
marriage,  is  not  to  be  treated  as  wholly  voluntary,  where  it  is 
done  in  performance  of  a  duty  which  a  court  of  equity  would 
enforce.f  Thus,  if  a  man  should  contract  a  marriage  by 
stealth  with  a  woman  having  a  considerable  fortune  in  the 
hands  of  trustees,  and  he  should  afterwards  make  a  suitable 
provision  on  her  in  respect  of  her  fortune,  the  settlement 
would  not  be  set  aside  in  favor  of  the  creditors  of  the  husband, 
since  a  court  of  equity  would  not  suffer  him  to  take  pos- 
session of  her  fortune,  without  making  a  suitable  settlement 
on  her.' 

'Randall  v.  Morgan,   12  Vcs.   6Y;  *  Lloore  v.  Rjcault,  Free.  Ch.    22, 

Warden  v.  Jones,  2  D.  &  J.  76.  and  other  cases  cited,  1  Fonk.  Bk.  1,  c. 

^  Su"-.  V.  &  P.  715.  4,  §  12,  and  note  (b),  H,.  c.  2,  §  6 ;  Jonea 

'  DaTt.  V.  <&  F.  576.    See  Holmes  v.  v.  iMarsh,  Ca.  t.  Talb.   64;  Wheeler  i;. 

Penney,  3  K.  &  J.  90.  Caryl,  Anib.  121;  Jcwsnn  v.  Moulson, 

*  buV  V.  <fe  P.  718;  Dart,  V.  <fe  P.  2  Atk.  417:   JMiddlecoiiihe  v.  Marlow, 

576.       °  ?7>.  519;   Ward   v.   Shallett,  2  Ves.    16; 

^  Holloway  v.   Headington,  8  Sim.  Ramsdeu  v.  Hylton,  ib.  304 ;   Arundell 

324;  Jefferys  v.  Jefferys,  (Jr.  &.  Ph.  138,  v.  Fliipps,  10  Ves.  139. 
141. 


*  Izard  V.  Izard,  1  Biiley's  Ch.  228 ;  Saunders  v.  Ferrill,  1  Ired.  97 ; 
Deerbell  t\  Fisher,  R.  M.  Charlton,  3G;  Blow  v.  Maynard,  2  Leigh,  29; 
Jones  V.  Henry,  3  Litt.  4'27;  Simpson  v.  Graves,  Riley's  Ch.  232. 

+  Wickes  V.  Clark,  3  Edw.  Cli.  58;  Bank  of  U.  S.  v.  Brown,  Riley's 
Ch.  131;  Smith  ».  Greer,  3  Humph.  118;  Garrell  v.  Grant,  4  Met.  480; 
3IcCauley  v.  Rhodes,  7  B.  Mon.  462. 

An  antenuptial  settlement  upon  the  intended  wife  and  her  children, 
born  l)efore  marriage,  is  valid.  Coutts  v.  Greenhorn,  2  Munf.  ?S3  ;  z.  c.  i 
Hen.  &  M.  485. 


204  FEAUD  UPON  THIRD  PARTIES. 

An  antenuptial  settlement  containing  trusts  in  fa^or  of  the 
husband,  wife,  and  issue,  and  also  ulterior  trusts  for  collaterals 
is,  so  far  as  the  ulterior  trusts  are  concerned,  voluntary;^  but 
if  the  limitations  in  the  settlements  so  interfere  with  those 
which  would  naturally  be  made  in  favor  of  the  husband,  wife, 
and  issue,  that  they  must  be  presumed  to  have  been  agreed 
upon  by  all  parties,  as  part  of  the  marriage  contract,  they  nre 
not  voluntary  and  will  be  upheld.^ 

There  is  some  inconsistency  in  the  decided  cases  on  the 
subject  of  conveyances  in  fraud  of  creditors.  Some  cases 
appear  to  lay  down  the  rule  that  a  deed  is  not  invalid,  unless 
the  grantor  or  settler  was  at  the  time  indebted  to  the  extent 
of  insolvency,  but  the  rule  as  so  laid  down  is  clearly  not  cor- 
rect.' According  to  dicta,  in  other  cases,  a  voluntary  settle- 
ment is  not  invalid,  although  the  settler  may  have  been 
considerably  indebted  at  the  time  of  the  settlement,  provided 
he  was  not  indebted  beyond  his  means  of  payment  remaining 
after  the  settlement.*  But  in  Spirett  v.  Willows,^  Lord  West- 
bury  laid  it  down  as  the  conclusion  to  be  drawn  from  the 
cases,  that  if  the  debt  of  the  creditor,  by  whom  the  voluntary 
settlement  is  impeached,  existed  at  the  date  of  the  settlement, 
and  it  be  the  necessary  consequence  of  the  settlement  that 
creditors  are  defrauded  or  delayed,  it  is  immaterial  whether 
the  debtor  was  or  was  not  solvent  after  making  the  settle- 
ment. "  The  fact,"  he  said,  "  of  a  voluntary  settler  retaining 
money  enough  to  pay  the  debts  which  he  owes  at  the  time  of 
making  the  settlement,  but  not  actually  paying  them,  cannot 
give  a  different  character  to  the  settlement  or  take  it  out  of 
the  statute.     It  still  remains  a  voluntary  alienation  or  deed  of 


>  Smith  V.  Cherrill,  L.  R.  4  Eq.  390.  Beav.  340;  Skarf  v.  Sonlby,  1  Mac.  A 

^  Clarke  v.  Wright,  6  H.  &  N.  869 ;  G.  864,   1   H.  &  Tw.  429 ;   French   v. 

Dart,  V.  &  P.  578,  581,  see  infra.  French,  6  D.  M.   <fe  Gr.   95;   Seward  v 

'4  Drew,  632  per  Kindersley,  V.-C.  Jackson,  8  Cow.  (Amer.),  406. 
*  See     Townsend    v.  Westacott,    2  °  34  L.  J.  Ch.  365. 


FRAUD  UPON  THIED  PARTIES.  205 

gift,  whereby  in  the  event  the  remedies  of  creditors  are  'de- 
layed, hindered,  or  defrauded.'  "^  The  rule  so  laid  down  may 
operate  harshly  in  cases  where  an  ample  fund  is  retained  by  a 
settler  for  the  payment  of  his  debts,  and  he  afterwards,  at 
some  distance  of  time,  loses  or  spends  so  much  of  his  property 
as  not  to  leave  enough  to  pay  such  debts.  But  the  rule 
appears  on  the  whole  to  be  sound,  and  agrees  with  the 
opinion  of  Kent,  C,  in  Livingstone  v.  Eeade.~  "The  con- 
clusion," he  said,  "to  be  drawn  from  the  cases  is  that  if 
the  party  is  indebted  at  the  time  of  the  voluntary  settlement, 
it  is  presumed  to  be  fraudulent  in  respect  to  such  debts, 
and  no  circumstance  will  permit  those  debts  to  be  affected  by 
the  settlement  or  repel  the  legal  presumption  of  fraud.  The 
presumption  of  law  in  this  case  does  not  depend  upon  the 
amount  of  debts  or  the  extent  of  the  property  in  settlement 
or  the  circumstances  of  the  party.  There  is  no  such  line  of 
distinction  set  up  or  traced  in  any  of  the  cases.  The  attempt 
would  be  embarrassing,  if  not  dangerous  to  the  rights  of  cred- 
itors, and  prove  an  inlet  to  fraud.  The  law  has,  therefore, 
wisely  disabled  the  debtor  from  making  any  voluntary  settle- 
ment of  his  estate  to  stand  in  the  way  of  existing  debts."  It 
must,  however,  be  observed  that  the  reasoning  of  Kent,  C, 
has  not  been  followed  in  later  American  cases,  and  that  the 
doctrine  has  not  been  pressed  to  the  extent  of  holding  a  volun- 
tary conveyance  made  on  a  meritorious  consideration,  as  of 
blood  and  affection,  void,  because  there  was  a  small  indebted- 
ness at  the  time.  The  better  doctrine  has  been  held  to  be 
that  there  is  no  absolute  presumption  of  fraud  which  entirely 
disregards  the  intent  and  purpose  of  the  conveyance,  if  the 
grantor  happened  to  be  indebted  at  the  time  it  was  made,  but 
that  such  a  conveyance,  under  such  circumstance,  affords  only 

'  See  French  v.  French;  6  D.  M.  &       C.  121,  135 ;  Smith  v.  Cherrill,  L.  K.  4 
G-.  95  ;  Thompson  v.  Wobsk-r,  7  Jur.  N.       Eq.  395. 
S.  531 ;  Cyrlett  v.  Radclifie,  14  Moo.  P.  *  3  Johns.  Ch.  (Araer.),  500. 


206  FRAUD  UPON  THIRD  PARTIES. 

frhna  facie,  or  presumptive  evidence  of  fraud,  wWcli  may  be 
rebutted  or  controlled,  the  question  being  in  eacli  case  a  qiies- 
tion  of  fact  for  the  jury.* 

In  his  Commentaries'  Kent,  C,  admits  the  tendency  of 
the  decisions  both  in  America  and  England  to  be  to  leave  the 
conclusion  of  fraud  as  a  matter  of  fact  for  a  jury  ;  but  he  does 
not  approve  of  the  rule,  and  adheres  to  the  doctrine  of  Reade 
-y.  Livingstone,  and  thinks  that  the  presumption  of  fraudulent 
intent  in  cases  of  the  sort  may  and  ought  to  be  an  inference 
of  law.'* 

The  provisions  of  the  stat.  13  Eliz.  c.  5,  are  not  confined 
to  existing  creditors,  but  extend  to  subsequent  creditors,  whose 

'  Seward  v.  Jackson,  8  Cow.  (Amer.),  marth,  9  ib.  3S6  ;  Story's  Eq.  Jur.  362. 

40(5;  Bank  of  United  States  w.  House-  See  also  Thompson  w.  Webster,  4  Drew, 

man,  6  Paige  (Amer.),  526;  Wickes  w.  632,  p'?-  Kindersley,  V.-C. ;   Graham?;. 

Clarke,  8  Taige  (Amer.),  165;  Hinde's  O'Keele,  16  Ir.  Ch.  1. 

Lessees    v.     Longworth,     11     Wheat.  "^  Vol.  2,  p.  442. 

(Amer.),   199;  Taacher  v.   Phinney,  7  ^  See  Van  Wyck  t).  Seward,  18  "Wend. 

Allen    (Amer.),    150;    Lerow   v.    Wil-  (Amer.)  392,  4U5. 


*  A  voluntary  conveyance  by  a  person  not  indebted  is  good  against 
future  creditors.  Sexton  v.  Wheaton,  8  Wheat.  229 ;  Benton  v.  Jones,  8 
Ct.  186 ;  Mattingly  «.  Nye,  8  Wall.  370 ;  Davis  ».  Payne,  4  Rand.  332 ; 
Baker  «.  Welch,  4  Mo.  484. 

A  voluntary  deed  by  a  person  indebted  at  the  time  of  its  execution  is 
not  absolutely  void  as  against  creditors.  The  mere  fact  of  being  in  debt 
does  not  make  the  deed  fraudulent  if  it  can  be  shown  that  the  gift  was  a 
reasonable  provision  according  to  the  state  and  condition  of  the  grantor, 
and  left  enough  for  the  payment  of  debts.  The  want  of  consideration  is 
only  a  presumptive  badge  of  fraud,  and  may  be  met  and  rebutted  by 
evidence  on  the  other  side.  Hinde  v.  Longworth,  11  Wheat.  199;  Parish 
V.  TMurphree,  13  How.  92 ;  Salmon  v.  Bennett,  1  Ct.  525 ;  Hopkirk  v. 
Randolph,  2  Brock.  132  ;  Leyne  v.  Bank  of  Ky.,  5  J.  J.  Marsh.  545  ;  Young 
V.  White,  25  Miss.  146  ;  Carpenter  ®.  Roe,  10  N.  Y.  227 ;  Wilson  v.  Houser, 
12  Penn.  lOif ;  Lerow  v.  Wilmarth,  9  Allen,  382 ;  Dodd  v.  McCraw,  3  Eng. 
83 ;  Arnett  v.  Wanett,  6  Ired.  41 ;  Hall  v.  Edriugton,  8  B.  Mon.  47 ; 
Stewart  v.  Rogers.  25  Iowa,  395  ;  Van  Wyck  «.  Seward,  18  Wend.  375  ; 
Bank  of  Alexandria  v.  Patton,  1  Rob.  499;  Dillard  v.  Dillard,  3  Humph. 
118;  Bird  v.  Boldtic,  1  Mo.  701. 

The  relincptislimcnt  of  a  mnrital  right  to  a  legacy  is  valid  against 
creditors.     Gallego  v.  Gallego,  2  Brock.  285. 


FRAUD  UPON  THIRD  PARTIES.  207 

debts  liad  not  been  contracted  at  the  date  of  the  settlement ;  * 
but  the  principle  will  not  operate  in  favor  of  subsequent  cred- 
itors, unless  it  can  be  shown  either  that  the  settler  made  the 
settlement  with  the  exjDress  intent  to  "delay,  hinder,  or 
defraud"  persons  who  might  become  creditors,^  *  or  that  after 
the  settlement  the  settler  had  not  sufficient  means  or  reason- 
able expectation  of  being  able  to  pay  his  then  existing  debts, 
in  which  case  the  law  infers  that  the  settlement  was  made 
with  intent  to  delay,  hinder,  or  defraud  creditors,^  f  o^"  at  least 
that  there  are  debts  unsatisfied  which  were  due  at  the  date  of 
the  settlement.*  If  at  the  time  of  filing  the  bill  no  debt  due 
at  the  execution  of  the  settlement  remains  unpaid,  and  there 
is  no  evidence  to  show  that  the  settlement  had  for  its  object 
the  delaying,  hindering,  or  defrauding  of  subsequent  creditors, 
the  settlement  prevails  against  them,^  :j:  but  if  any  debt  due  at 

'  Tarback  v.  Marbury,  2  Vern.  509.  36'7,  per  Lord  Westbury ;  Thompson  v. 

»  Stileman  v.  Ashdown,  2  Atk.  481;  Webster,  1  Jur.  N.  S.  531.    Comp.  Hoi- 

Stephfns  v.   Ollive,   2  Bro.  C.   C.  01;  mes  v.  Penney,  3  K.  &  J.  90. 

Holloway   v.   Millard,    1    Madd.   414;  *  Jenkyn  ?;.  Vaughan,  3  Drew.  419 ; 

Holmes  v.  I'enney,  3  K.  &  J.  99;    Barl-  Barton  v.  Vanheythuysen,  11  Ha,  132. 

ing  V.   Bishop,  29  Beav.  417;  Murphy  Comp.  Holmes  v.  Penney,  3  K.  &  J.  90. 

V.  Abraham,  15  Ir.  Ch.  371.  "  Jenkyn  v.  Vaughan,  3  Drew.  419. 

*  Spirett  V.  Willows,  34   L.    J.    Ch.  See  Russell  v.  Hammond,  1  Atk.  13; 


*  Case  V.  Phelps,  39  N.  T.  164;  Hall  v.  Sands,  52  Me.  355;  Bedford  v. 
Crane,  1  C.  E.  Green,  2G5  ;  Henderson  v.  Dodd,  1  Bailey's  Cli.  138;  Blake 
V.  Jones,  1  Bailey's  Ch.  141 ;  Russell  v.  Stenson,  3  Hey.  1 ;  Cosby  v.  Ross, 
3  J.  J  Marsh.  290 ;  Bogard  v.  Gardley,  4  Smed.  &  Mar.  302 ;  Wright  v. 
Henderson,  7  How.  (Miss.)  539  ;  Henry  «.  Fullerton,  13  Smed.  &  Mar. 
G31 ;  Mullen  v.  Wilson.  44  Penn.  413 ;  Savage  v.  Murphy,  8  Bosw.  75 ; 
Carlisle  v.  Rich,  8  N.  H.  44  ;  Winchester  v.  Charter,  12  Allen,  60G  ;  97 
Mass.  140;  102  Mass.  272. 

t  Parkman  v.  Welch,  19  Pick.  231 ;  Bank  of  Alexandria  v.  Atwater,  1 
Rob.  499;  Hutchinson  v.  Kelly,  1  Rob.  123;  Hey  t).  Niswanger,  1  IJc- 
Cord's  Ch.  518;  s.  c.  1  Harp.  Ch.  295;  Hamilton  v.  Thomas,  5  Hey.  127; 
Hauzen  v.  Power,  8  Dana,  91  ;  Mason  v.  Rogers,  1  Root,  324 ;  Miller  v. 
Thompson,  3  Port.  198 ;  Clark  v.  French,  10  Shep.  221  ;  ]\IcConipe  r. 
Sawyer,  12  N.  H.  396;  Thompson  v.  Dougherty,  12  S.  &R.  448;  Somer- 
ville  V.  Horton,  4  Yerg.  541 ;  Darwin  v.  Handley,  3  Yerg.  302  ;  Simpson 
«.  Mitchell,  8  Yerg.  417 ;  King  v.  Wilcox,  11  Paige,  589 ;  Hester  W.Wil- 
kinson, 6  Humph.  215. 

X  TaJe  V.  Tate,  1  Dev.  &  But.  Eq.  22;  Ingram  v.  Philips,  3  Strobh.  865. 


208  FRAUD  UPON  THIED  PAKllES. 

the  date  of  tlie  settlement  reinaius  unsatisfied  at  tlie  time  of 
filing  the  bill,^  or  if  there  be  evidence  to  show  that  the  settle- 
ment was  made  in  contemplation  of  future  debts,  or  in  fmiher- 
ance  of  a  meditated  design  of  future  fraud,  although  the  settler 
may  not  have  been  indebted  at  the  time,^  the  deed  will  be  set 
aside.'  If  a  settlement  is  set  aside  as  fraudulent  against  cred- 
itors whose  debts  accrued  before  its  execution,  subsequent 
creditors  are  entitled  to  participate :  *  but  if  antecedent  cred- 
itors can  not  make  out  a  case  for  setting  it  aside,  subsequent 
creditors  can  not  impeach  the  settlement  as  fraudulent  by 
reason  of  the  prior  indebtment.^ 

In  Holmes  v.  Penney  ^  the  conveyance  by  a  man  of  his 
property  to  trustees  for  valuable  consideration  upon  trust  to 
apply  it  at  their  discretion  in  the  maintenance  of  himself,  his 
wife  and  children,  or  any  of  them,  in  such  a  manner  as  they 
should  think  fit,  was  held  valid  against  subsequent  creditors, 

Holmes  ».  Penney.  3  K.  <fe  J.  96;  Barl-      ham  v.  O'Keefe,  16  Ir.  Ch.  1 ;  Savage 

ing  V.  Bishop.  29  Beav.  41*7 ;  Thompson      v.  Murphy,  7  Tiff.  (Amer.)  508. 

V.  Webster,  7  Jur.  X.  S.  531.  ^  See  Whittington  v.  Jennings,  6  Sim. 

*  Jenkyn  v.  Vaughan,  3  Drew.  419. 
Comp.  Holmes  v.  Tenney,  3  K.  <fe  J 
90.  See  Graham  v.  O'keefe,  16  Ir, 
Ch.  1. 

=  Stileraan  v.  Ashdown,  2  Atk.  481 
Richardson  v.  Smailwood,  Jac.  552 
HolLjway  v.  Millard,  1  Madd,  414 
Barling  v.  Bishop,  29  Beav.  417  ;  Mur- 


496. 

*  Richardson  v.  Smailwood,  Jac.  552; 
Ede  V.  Knowles,  2  Y.  <fc  C.  C.  C.  172 ; 
Barton  v.  Vanheythuysen,  11  Ha.  132. 

*  See  Holloway  v.  Millard,  1  .Madd. 
419;  Walker  v.  "Burrows,  1  Atk.  94; 
Ede  V.  Knowles,  2  Y.  &  C.  C.  C.  172, 
178.     Comp.  Story's  Eq.  Jur.  363. 


phy  V.  Abraham,  15  Ir.  Ch,  371 ;  Gra-  «  3  K  &  J.  99. 

Accounts  -which  have  1)6011  merged  in  judgments  may  be  offered  in 
evidence  to  show  an  indebtedness  prior  to  the  making  of  the  deed.  Hinds 
V.  Longworth,  11  Wheat.  199;  Harlan  t.  Barnes,  5  Dana,  219. 

A  contingent  debt  likely  to  become  absolute,  and  which  afterwards 
does  become  absolute,  is  sufficient.  McLaughlin  v.  Bank  of  Potomac,  7 
How.  220. 

A  debt  by  a  note  which  is  afterwards  renewed,  continues  to  be  the 
same  debt.  McLaughlin  v.  Bank  of  Potomac,  7  How.  220 ;  Eigleberger 
V.  Kibler,  1  Hill's  Ch.  113. 

Subsequent  debts  contracted  in  exoneration  of  preceding  ones  are 
nothing  more  than  a  continuance  of  antecedent  indebtedness.  Brown  v. 
McDonald,  1  Hill's  Ch.  297 ;  Savage,  v.  Murphy,  34  N.  Y.  508. 


FRAUD  UPON  THIED  PARTIES.  209 

and  also  against  a  person  wlio  was  a  creditor  at  tlie  time  of 
making  the  conveyance,  and  whose  debt  was  concealed  by  the 
settler  from  the  purchaser.  It  was  also  laid  down  ^  by  Wood, 
L.  J.,  that  a  voluntary  settlement  to  the  same  effect  would  be 
upheld  against  subsequent  creditors. 

In  order  to  make  a  voluntary  settlement  or  conveyance 
void  as  against  creditors,  whether  existing  or  subsequent,  it  is 
indispensable  that  it  should  transfer  property  which  would  be 
liable  to  be  taken  in  execution  for  the  payment  of  debts.^  * 
Under  the  old  law  a  voluntary  settlement  of  stock  or  of 
choses  in  action,  or  of  copyholds,  or  of  any  other  property 
not  liable, to  execution  was  not  within  the  statute  of  Elizabeth  :' 
but  copyholds,  bonds,  money,  stock,  &c.,  &c.,  being  under  1 
Yict.  c.  100  seizable  in  execution,  are  now  within  the  statute.* 

A  strong  presumption  of  fraud  against  creditors  arises, 
where  after  a  bill  of  sale  of  chattel  property,  purporting  on 
its  face  to  take  effect  immediately,  the  vendor  or  settler  is 
after  its  execution  permitted  to  remain  in  possession  of  the 
property.^  f    It  is  otherwise,  however,  if  his  continuance  in 

'  3  K.  <fe  J.  100.  ■*  Norcut.t  v.  Dodd,  Cr.   &  Ph.  100 

"  ^cc  Dundas  v.  Dutens,  1  Vea.  Jr.  Barrack  v.   MV^uUock,  3  K.  <t  J.  110 

196;   I'aill.uid  v.  Estwick,  Anst.  381;  French  v.  French,  6   D.   M.   &  G.  95. 

Nantes   v.    Corrock,  9  Ves.   188,  189;  Warden  «;.  Jones,  2  D.  <fe  J.  70 ;  Stokoe 

Rider  v.  Kidder,  10  Ves.  368 ;  Guy  v.  v.  Cowen,  29  Ecav.  637. 

Pearkes,  18  Ves.  196.  *  Twyne's  Case,  3  Co.  Rop.  81  j  Ed- 

^  lb  ;     Ilorn    v.    Horn,    Amb.    79  ;  wards  v.  Harben,  2  T.  R.  587. 

Cochrane  v.  Cliambers,  ib.  n.  Korcutt; 

V.  Dodd,  Cr.  &  Pk  100. 


*  Bean  v.  Smith,  3  Mason,  252 ;  Poague  ».  Boyce,  6  J.  J.  Marsh.  70 ; 
Bayard  i\  Hoffman,  5  Johns.  Ch  450;  Phinters'  Bank  v.  Ilendcrson,  4 
Humph  75  ;  Winebrenner  v.  Worsiger,  3  Mon.  33  ;  Legro  v.  Lord.  1  Fairf. 
161  •  Foster  v.  M'Gregor,  11  Vt  595;  Dearman  v.  Dearman,  4  Ala.  531; 
How  V.  Wayman,  12  Mo.  169;  Lishey  v.  Clayton,  6  Bush,  515. 

If  a  debtor  without  any  secret  trust  or  intentional  fraud  invests  his 
money  in  improvements  upon  the  real  estate  of  another,  his  creditors  can 
not  treat  such  third  party,  or  the  land  as  liable  to  them.  Ewiug  v. 
Cantrels  1  :\Ieig3,  304. 

t  Concurrent  possession  by  grantor  and  grantee  is  colorable.      The 


210  FRAUD  UPON  THIliD  PARTIES. 

possession  is  consistent  with  the  nature  of  the  transaction,  as 
where  a  bill  of  sale  is  not  absolute  on  its  face  or  in  its  form, 
but  only  conditional,  so  that  possession  is  not  to  be  gi^en  until 
the  condition  has  been  performed.^"  In  Edwards  v.  Har- 
ben'  t  the  court*  went  so  far  as  to  say  that  possession  of  goods 
sold  under  an  absolute  bill  of  sale  is  conclusive  evidence  of 
fraud ;  but  the  tendency  of  later  decisions  has  been  to  cpialify 
that  doctrine,  and  the  weight  of  authority  is  in  favor  of  the 
modified  doctrine  that  possession  by  the  vendor  or  settler 
affords  only  a  badge  or  ^rima  facie  presumption  of  fraud, 
which  may  be  rebutted  by  explanation,  showing  the  trans- 
action to  be  fair  and  honest,  and  giving  a  reasonable  ground 
for  the  retention  of  possession.     The  question  as  to  fraud  in 

'  Edwards   v.   Ilarben,  2  T.  R.  587;  see  17  &  18  Vict.  c.  36,  Registration  of 

Cadogau  v.  Kennett,  Cowp  434;  Martin-  Bills  of  Sales  Act,  1  Smith's  L.  C.  14: 

dale  %.  Bootl),  3  B.   &   Ad.  498,  505 ;  Addison  on  Contracts,  147-150. 
Minsliall  v.  Lloyd,  2  M.  &  W.  450  ;  but  =*  2  T.  R.  587. 


possession  must  be  exclusive.  Boyd  v.  Dunlap,  1  Johns.  Cli.  478 ;  Baxter 
V.  Gaines,  4  Hen  &  M.  151 ;  Hall  x.  Parsous,  17  Vt.  271 ;  Mills  v.  Warner, 
19  Vt.  609 ;  Stadtler  v.  Wood,  24  Tex.  623. 

Joint  possession  by  husband  and  wife  is  not  fraudulent.  Danforth  «. 
Wood,  11  Paige,  9. 

Assumption  of  possession  after  the  death  of  the  grantor  is  not  sufS- 
cient.     Shields  ».  Anderson,  3  Leigh,  729. 

A  mortgagee  who  takes  a  release  of  an  equity  of  redemption,  thereby 
extinguishes  his  mortgage,  and,  if  the  release  is  fraudulent,  his  riglit  is 
gone.  Gla::SCock  o.  Battou,  6  Rand.  78 ;  Clayborn  v.  Hill,  1  Wash.  (Va.) 
177 ;  contra,  Irish  v.  Morse,  10  Vt.  81 ;  Toule  v.  Hoit,  14  N.  H.  61. 

*  Letcher  v.  Norton,  4  Scam.  575 ;  U.  S.  «.  Hoe,  3  Cranch,  73 ;  Bank 
of  Georgia  v.  Higginbottom.  9  Pet.  148 ;  Gist  v.  Pressley,  2  Hill's  Oh. 
318 ;  Briggs  v.  Parkman,  2  Met.  258 ;  Planters'  &  Merchants'  Br.nk  v. 
Wdlis,  5  Ala.  770 ;  Leane  «.  Borland,  2  Shep.  77  ;  Ash  v.  Savage,  5  N.  I[, 
545 ;  Maney  v.  Killough,  7  Yerg.  440. 

t  It  has  been  held  in  the  following  cases  that  the  retention  of  posses- 
sion by  the  vendor  was  fraudulent  per  se.  Hamilton  v.  RusseU,  1  Cranch, 
310;  Phettiplace  v.  Sayle?,  4  Mason,  312;  Fuller  v.  Sears,  5  Vt.  527; 
Farnsworth  v.  Shepard,  G  Vt.  521 ;  Mills  v.  Camp,  14  Ct.  219;  Kirtland  v. 
f^ow,  20  Ct.  2o;  Doack  v.  Brubackcr,  1  Nev.  218;  I'abb  /•.  Clemscn,  10  S. 
6:  R.  419;  Young  v.  M'Glure,  2  W.  &  S.  147  ;  Jarvis  v.  Davis,  14  B.  Moo. 


FRAUE  UPON  THIRD  PARTIES.  211 

sucli  cases  is  not  an  inierence  of  law,  but  one  of  fact  for  tlie 
jiiry.i  * 

*  Lady  Arundell  v.  Pliipps,  10  Ves.  898,   per   Tindal,    C.  J, ;    Macdona  v. 

145  ;  MartiiidMle  v.  Booth,  3  B.  <fe  Ad.  Swiney,  8  Ir.  C.  L.  73  ;  Cooke   v.   Wal- 

498,  505  ;  Latimer  v.  Batson,  4  B.  &.  C.  ker,  3   W.  R.  357  ;    1   Smith's  L.  C.  p. 

652;  Linden  v.  Sharp,  6  M.  &  G.  895,  13. 


52 ;  Hundley  v  Webb,  3  J.  J.  Marsh.  643 ;  Bremmel  v.  Stockton,  3  Dana, 
134;  Chenery  v.  Palmer,  G  Cal.  119  ;  Gibson  t\  Love,  4  Fla.  217  ;  Saudera 
i\  Pepoon,  4  Fla. 46") ;  Bowman  )\  Herring, 4  Harring.  458  ;  Jorda  v.  Lewis, 
1  La.  An.  59 ;  Cobum  v.  Pickering,  3  N.  H.  415  ;  Clafflin  v.  Rosenberg,  42 
Mo.  439 ;  Ketclmm  v.  Watson,  24  111.  591. 

*  It  has  been  beld  in  the  following  cases  that  the  retention  of  posses- 
sion by  the  vendor  is  only  presumptive  evidence  of  fraud.  Warner  v. 
Norton,  20  How.  448  ;  Hombeck  v.  Vanmetre,  9  Ohio,  153  ;  Collins  v. 
Myers,  IGOhio,  547;  Reed  v.  Jewett,  5  Greenl.  96;  Ulmer  v.  Hills,  8 
Greenl.  32G ;  Brooks  v.  Powers,  15  Mass.  244  ;  Bartlett  «.  Willianis,  1 
Pick.  288;  Hanford  v.  Artcher,  4  Hill,  271 ;  Thompson  v.  Blanchard,  4  N. 
y.  803 ;  Terry  v.  Belcher,  1  Bailey,  568 ;  Davis  v.  Turner,  4  Gratt.  422 ; 
Forkner  v.  Stuart,  6  Gratt.  197;  Callen  v,  Thompson,  3  Yerg.  475;  Manly 
V.  Killough,  7  Yerg.  440;  Vick  v.  Keys,  2  Hayw.  126;  Foley  v.  Knight, 
4  Blackf.  420;  Watson  v.  Williams,  4  Blackf  26;  Miller  «.  Pancoast, 
4  N.  Y.  303;  Beers  v.  Dawson,  8  Geo.  556;  Kuykeudall  v.  McDonald, 
15  Mo.  416  ;  Biyant  v.  Kelton,  1  Tex.  415  ;  Morgan  v.  Republic,  2  Tex. 
273;  Livingston  v.  Littell,  15  Wis.  221;  Bullis  ».  Borden,  21  Wis.  136; 
Ilobbs  V.  Bibb,  2  Stew.  54-336  ;  Mayer  v.  Clark,  40  Ala.  259  ;  Rankin  «. 
Holloway,  3  Smed.  &  Mar.  614 ;  Corastock  v.  Rayford,  12  Smed.  &  Mar. 
369 ;  Frield  v.  Simco,  2  Eng.  2G9. 

After  a  sale  under  an  execution  when  a  stranger  is  a  purchaser,  the 
property  may  be  left  in  the  possession  of  the  vendor.  Floyd  v.  Goodwin, 
8  Yerg.  484;  Andrews  v.  Brooks,  11  Ala.  953;  Abney  v.  KiugsLnd,  10 
Ala.  355;  Simerson  v.  Bank  of  Decatur,  12  Ala.  205;  Garland  'o.  Cham- 
bers, 11  Smed.  &  Mar.  337  ;  Coleman  v.  Bank  of  Hamburg,  2  Strobh.  Eq. 

285. 

Possession  for  a  long  time  after  a  sale  under  an  execution  is  fraudulent. 
Taylor  v.  Mills,  2  Edw.  Ch.  318 ;  Stover  v.  Farmers'  &  Merchants'  Bank,  8 
Smed,  &  Mar.  305. 

Want  of  possession  is  not  presumptive  of  fraud  if,  from  the  circum- 
etances  of  the  property,  possession  can  not  be  given.  A  familiar  example 
of  this  doctrine  is  in  the  case  of  a  sale  of  a  ship  or  goods  at  sea  wdiere 
possession  is  dispensed  vf'iXh.  on  the  plain  ground  of  its  impossibility;  and 
it  is  sufficient  if  the  vendee  takes  possession  of  the  property  within  a 
reasonable  time  after  its  arrival  in  port.  Conrad  ».  Atlantic  Fire  Ins.  Co., 
1  Pet.  386 ;  Portland  Bank  ».  Stacey,  4  Mass.  661 ;  Putnam  i}.  Dutch,  8 
Mass.  287  ;  Joy  v.  Sears,  9  Pick.  4. 


212 


FRAUD  UPO>?   THIRD  PAETIES. 


Transactions  wliicli  have  for  their  object  the  defeating  op 
defrauding  of  creditors  must  be  carefully  distinguished  from 
cases  where  a  sale,  or  assignment,  or  other  conveyance  merely 
amounts  to  giving  a  preference  to  one  creditor,  or  to  one  set 
of  creditors,  over  another,  or  where  the  assignment  or  convey- 
ance is  made  for  the  benefit  of  all  creditors.  The  law  tolerates 
assignments  giving  one  creditor  a  preference  over  another.  * 
The  fact  that  an  assignment  may  have  been  expressly  made 
with  the  intent  to  defeat  the  claim  of  a  particular  creditor  is 
of  no  consequence  either  at  common  law  or  under  the  statute 
of  Elizabeth,  if  the  consideration  be  adequate.^  Under  the 
bankrupt  law,  however,  the  transfer  by  a  man  of  the  whole,  or 
the  bulk,  or  even  a  part  of  his  property  to  a  creditor  in  con- 
sideration of  an  antecedent  debt  is  fraudulent,  if  made  volun- 
tarily and  in  contemplation  of  bankruptcy.' 


»  Holbird  v.  Anderson,  6  T.  R.  235 
Estwick  V.  Caillaud,  5  T.  R.  420 
Grogan  v.  Cooke,  2  Ea.  &  Be.  235 
Pickptock  V.  Lyster,  3  M.  &  S.  311 
Wood  V.  Dixie,  7  Q.  B.  892 ;  Hale  v 
Saloon    Omnibus    Co.,   4  Drew.    592 


Wolverhampton  and  Staflfordshire  Bank- 
ing  Co.  V.  Marston,  1  H.  &  N.  148.  But 
see  Bott  v.  Smith,  21  Beav.  511. 

""  Smith  V.  Cannan,  2  E.  &  B.  35 , 
Bittleston  v.  Cooke,  6  E.  &  B.  298; 
Young  V.  Fletcher,  3  H.  «fe  C.  132,  infra. 


*  Tompkins  v.  Wheeler,  16  Pet.  108  ;  Marbury  v.  Brooks,  7  Wheart. 
556;  s.  c.  11  Wheat.  78;  Murray  v.  Riggs,  15  Johns.  571;  Green  «.  Tan- 
ner, 8  Met.  411  ;  Skipwitli  v.  Cunningham,  8  Leigh,  271 ;  U.  S.  Bank  v. 
Hath,  4  B.  Men.  423. 

An  assignment  for  the  benefit  of  creditors  exacting  releases  is  valid. 
Brastiear  v.  West,  7  Pet.  608 ;  Lippincott  v.  Barker,  3  Binney,  174 ;  Pier- 
pont  V.  Graham,  4  Wash.  (Penn.)  333  ;  Halsey  v.  Whitney,  4  Mason,  230 ; 
Niolen  v.  Douglass,  3  Hill's  Ch.  443 ;  Ashunt  v.  Martin,  9  Port.  566 ;  Vose 
«.  Holcomb,  31  Me.  407  ;  Heydock  v.  Stanhope,  1  Curt.  471;  Pierce  v. 
Jackson,  1  R.  I.  35  ;  Dockray  v.  Dockray,  3  R.  I.  547 ;  Rankin  ».  Lodor, 
21  Ala.  380 ;  McCall  v.  Hinkley.  4  Gill,  128 ;  Kettlewell  «.  Stewart,  8  Gill, 
472;  contra,  Wakeman  v.  Grover,  4  Paige,  23;  s.  c.  11  Wend.  187,  Amos 
T.  Blunt,  5  Paige,  113  ;  Ingraham  v.  Wheeler,  6  Ct  377  ;  Atkinson  «.  Jor- 
dan, 5  Ohio,  393 ;  Hyslop  v.  Clark,  14  Johns.  458 ;  Austin  v.  Clark,  30 
Johns.  443;  Haven  v.  Richardson,  5  N.  H.  113;  The  Watchman,  Ware, 
233;  Conklingw  Carson,  11  111.  503;  Nesbit  v.  Digby,  13  111.  387;  Miller 
t.  Couklm,  17  Geo.  430. 


FRAUD  UPOlJf  THIRD  PARTIES.  213 

An  assignment  by  a  man  of  liis  property  for  tlie  benefit  of 
his  creditors  is  valid,  and  will  be  supported,  provided  the 
deed  be  oond  fide,  for  the  benefit  of  all  the  creditors,  and  there 
be  an  miconditional  surrender  by  the  debtor  of  all  his  prop- 
erty and  effects.^  But  a  deed  which  the  debtor  has  a  power 
to  revoke,  and  attempts  to  use  as  a  shield  against  his  creditors, 
is  fraudulent  and  void  against  creditors  who  are  affected  by 
the  deed,  notwithstanding  the  deed  upon  the  face  of  it  pur- 
ports to  be  for  the  benefit  of  all  the  creditors.^  So  also  is  an 
instrument  void  as  against  creditors,  if  there  is  any  provision 
contained  in  it  which  shows  that  the  debtor,  at  the  time  of  its 
execution,  intended  to  prevent  an  immediate  application  of 
his  property  in  favor  of  his  creditors.^  * 

'Smith  w.  Hurst,  10  Ha.  30;   Riches  »  Brigham    v.    Tillinghast,   3  Kern. 

V.  Evans,  9  C.  &  P.  641.  (Araer.),  215. 

■■'  Smith  V.  Hurst,  10  Ha.  30. 


*  The  fact  that  the  mortgagor  is  allowed  to  sell  the  mortgaged  goods 
at  retail  after  the  execution  of  the  mortgage,  is  merely  a  badge  of  fraud. 
Frost  V.  Warren,  43  N.  Y.  204 ;  Summers  v.  Roos,  42  Miss.  749. 

A  mortgage  which  contains  a  stipulation  reserving  to  the  mortgagor 
the  power  to  sell  the  mortgaged  property  for  his  own  benefit,  is  fraudu- 
lent. Edzell  V.  Hart,  9  N.  Y.  21 ;  Lang  v.  Lee,  3  Rand.  410 ;  Collins  r. 
McEh-oy,  16  Ohio,  547;  Sheppard  v.  Turpin,  3  Gratt.  373;  Addington  v. 
Etheridge,  12  Gratt.  436;  Brooks  v.  Wimer,  20  Mo.  503;  Walter  v. 
Wimer,  24  Mo.  63;  Freeman  v.  Rauson,  5  Ohio  St.  R.  1  ;  Harman  v.  Abbey, 
7  Ohio  St.  R.  218 ;  Chophard  v.  Bayard,  4  Minn.  533 ;  Place  v.  Langworth, 
13  Wis.  629;  Armstrong  ®.  Tuttle,  34  Mo.  432;  Barnet  «.  Fergus,  51  111. 
352. 

When  there  is  an  agreement  out  of  the  mortgage  that  the  mortgagor 
shall  continue  in  possession,  and  buy  and  sell  as  usual,  the  mortgage  is 
fraudulent.  Gardner  v.  McEwen,  19  K  Y.  123  ;  Russell  v.  Wines,  37  N.  Y. 
591;  Ward  v.  Lowry,  17  Wend.  432;  Delaware  v.  Ensign,  21  Barb.  85. 

An  agreement  that  the  mortgagor  shall  continue  in  possession  and  sell 
the  mortgaged  property,  and  apply  the  proceeds  to  the  satisfaction  of  the 
debt  which  the  mortgage  is  given  to  secure,  is  not  fraudulent.  Conkling 
V.  Shelley,  28  N.  Y.  300 ;  Ford  v.  Williams,  24  N.  Y.  359 ;  MUler  v.  Lock- 
wood,  33  N.  Y.  293 ;  Saunders  v.  Turbeville,  3  Humph.  273 ;  Abbott  w. 
Goodwin,  20  Me  408;  Contra  Ticknor  v.  Wisnall,  9  Ala.  305. 


214  FRAUD  UPOK  THIRD  PARTIES. 

The  same  policy  of  affording  protection  to  the  rights  of 
creditors  pervades  the  provisions  of  the  statute  3  &  4  Will.  & 
M.  c.  14,  respecting  fraudulent  devises  in  fraud  of  creditors;* 
but  the  statute  does  not  reach  conveyances,  whether  voluntary 
or  not,  which  the  debtor  may  make  in  his  lifetime.^  A  debtor 
may  alienate  the  land  notwithstanding  the  existence  of  debts, 
or  he  may  by  will  make  it  equitable  assets,  or  he  may  devise 
it  for  the  payment  of  a  particular  debt  on  simple  contract,  and 
so  withdraw  it  from  specialty  creditors  altogether.  The  cred- 
itors may,  by  taking  proceedings,  obtain  payment  out  of  the 
descended  or  devised  real  estates  in  the  hands  of  the  heir  or 
devisee;  but  if  such  proceedings  are  not  taken,  the  heir  or 
devisee  may  alienate,  and  in  the  hands  of  the  alienee,  whether 
upon  a  common  purchase  or  on  a  settlement,  even  with  notice 
that  there  are  debts  unpaid,  the  land  is  not  liable,  althcugb 
the  heir  remains  personally  liable  to  the  extent  of  the  value  of 
the  land  alienated.^  The  alienee,  however,  may  be  restrained 
at  the  suit  of  creditors  from  parting  with  the  money,* 

Another  case  of  fraud  upon  creditors  is  where  upon  a  com- 
position by  a  debtor  with  his  creditors,  particular  creditors,  by 
means  of  secret  bargains,  secure  to  themselves  undue  advan- 
tages over  the  rest  of  the  creditors.  The  principle  of  all 
composition  deeds  being  that  the  debtor  shall  make  a  true 
representation  of  his  assets,  and  that  the  creditors  shall  stand 
upon  an  equal  footing  and  observe  good  faith  towards  each 
other,  any  secret  arrangements  between  the  debtor  and  a  par- 
ticular creditor,  whereby  he  is  placed  in  a  more  favored 
position  than  the  rest  of  the  creditors,  is  a  fraud  upon  the 

'  Sec  Jeremy  on  Eq.    Jur.  bk.  3,  pt.  123;  Dilkes  v.  Broadmead,  2  D.  F.  <fe  J. 

2,  c.  3,  §4  pp.415,  416.  See  also  Coope  566.    But  see  Pimm  v.  Insall,  1  Mac.  & 

V.  Cresswell,  L.  R.  2  Ch.  App.  112.  G.  449. 

*  1  Ff.nb.  Eq.  b.  1,  c.  4,  §  14  n.  *  Green  v.  Lowes,  3  Bro.  C.  C.  21V. 

'  Sj^ackman  v.  Timbrell,  8  Sim  2.53; 
RichaidsoQ   v.    Ilorton,    V    Beav.    112, 


FRAUD  UPOX  THIRD  PARTIES.  215 

others.^  *  In  modern  times,  the  same  rule  lias  been  acted  on 
at  law.'^ 

For  the  like  reasons,  any  agreement  made  by  an  insolvent 
debtor  with  his  assignee,  by  which  the  estate  of  the  insolvent 
is  to  be  held  in  trust  by  the  assignee  to  secure  certain  benefits 
for  himself  and  his  family,  such  as  to  pay  certain  annuities  to 
himself  and  his  wife  out  of  the  rents  or  proceeds  of  the  prop- 
erty assigned,  and  to  apply  the  surplus  to  the  extinction  of 
debt  due  to  the  assignee,  is  void  as  being  a  contrivance  in 
fraud  of  creditors.^ 

A  creditor,  however,  holding  a  security  for  his  own  debt, 
may  stipulate  to  have  the  benefit  of  it  in  addition  to  the 
amount  of  the  composition  offered  by  a  debtor  to  his  creditors, 
but  he  must  hold  himself  entirely  aloof  from  the  other  cred- 
itors, or  distinctly  communicate  with  them  on  the  subject,  if 
he  at  all  acts  in  common  with  them.* 

FRAUD  UPON  MARRIAGE  ARTICLES. 

Another  class  of  frauds  upon  third  parties,  which  will  be 
relieved  against  in  equity,  is  where  persons  after  doing  acts 

'  Jackman  v.   Mitchell,  13  Ves.  581 ;  Barker,  1  L.  R.  Eq.  139.    Comp.  Lee?;. 

Sadler  v.  Jackson,  15  Ves.  52;  Coleman  Lockliart,  3  M.  &,  G.  315. 

V.  Waller,  3  Y.  &  J.  215  ;  CuUingwoith  '  Cuckshott  v.  Bennett,  2  T.  R.  763  ; 

V.  Lloj'd,  2  Beav.  385,  and  cases  cited  Knight  v.  Hunt.  6  Biug.  432  ;  Lewis  v. 

395  n.;    Pendlebury  i).  Walker,  4  Y.  <fe  Jones,   4   B.    <fe   C.    50G;    Ilowden    v. 

C.  434;  Ex-parie  Oliver,  4  lia^^.  <fe  Sm.  liaigh,  11  A.  &  E.  1033. 

362;    Mare    v.    Sandford,   1   Giff.    288;  =  McNeill  z;.  Cahill,  2  Bligh,  228. 

Mare  i;,  Warner,  3  Giff.   100;   Wood  v.  *  Culliugworth  ii.  Lloyd,  2  Beav.  385. 


I 


*  1  Smith  V.  Stone,  4  G.  &  J.  310  ;  Daugbty  r.  Savage,  28  Ct.  146  ;  Case 
«.  Garrish,  15  Pick,  49 ;  Ramsdell  v.  Eilgarton,  8  Met.  227 ;  Lotlirop  ». 
King,  8  Cash.  382 ;  Breck  v.  Cole,  4  Sandf.  79;  Carroll  %\  Shields,  4  E.  D. 
Smith  466;  Higgins  x>.  Mayer,  10  How.  Pr.  863;  Lawrence  v.  Clark,  36  N. 
Y.  128;  Pinneo  ».  Higgins,  12  Abb.  Pr.  334;  Beach  v.  Ollendorf,  1  Hilt. 
41 ;  Smith  r.  Owens,  21  Cal.  11  ;  Bartleman  v.  Douglass,  1  Crancli's  C.  C.  450. 

The  rule  has  no  applic.ition  to  a  case  where  each  creditor  acts  not  only 
for  himself  but  in  opposition  to  every  other  creditor,  all  equally  relying 
upon  their  vigilance  to  obtain  priority.     Clark  «.  White,  12  Pet.  178. 

A   concealment  of  a  portion  of  his  assets  by  the  debtor  will  make 


216  FEAUD  UrON  THIRD  PARTIES. 

required  to  be  done  on  a  treaty  of  marriage,  render  those  acts 
unavailing  by  entering  into  otlicr  secret  agreements,  or  dero- 
gate from  those  acts  or  otherwise  commit  a  fraud  upon  the 
relatives  or  friends  of  one  of  the  contracting  parties;^  as  where 
a  parent  declines  to  consent  to  a  marriage  on  account  of  the 
intended  husband  being  in  debt,  and  the  brother  of  the  latter 
gives  a  bond  for  the  debt  to  procure  such  consent,  and  the 
intended  husband  then  gives  a  counter-bond  to  his  brother  to 
indemnify  him  against  the  first  bond.^  So,  also,  where  a 
creditor  of  the  intended  husband  concealed  his  own  debt  and 
misrepresented  to  the  lady's  father  the  amount  of  the  debts  of 
the  intended  husband,  the  transaction  was  treated  as  a  fraud 
upon  the  marriage,  and  the  creditor  was  restrained  from 
enforcing  his  debt  at  law  against  the  husband  after  the  mar- 
riage.^ So,  also,  where  a  brother  on  the  marriage  of  his  sister 
let  her  have  a  sum  of  money  privately  that  her  fortune  might 
appear  to  be  as  much  as  was  insisted  on  by  the  other  side,  and 
the  sister  gave  a  bond  to  the  brother  to  repay  it,  the  bond 
was  set  aside.*  So,  also,  where  the  money  due  by  an  intended 
husband  upon  a  mortgage  was  represented  by  the  mortgagee 
to  the  relations  of  the  wife  to  be  much  less  than  was  really 
due,  he  was  not  allowed  to  recover  more  than  he  had  repre- 
sented the  debt  to  amount  to.^ 

Another  case  of  fraud  upon  marriage  articles  is  where  a 
father,  who  had,  on  the  marriage  of  his  daughter,  covenanted 
that  he  would  upon  his  death  leave  her  certain  tenements,  and 
would  also  by  his  will  give  and  leave  her  a  full  and  equal 

'  Peyton  v.  Bladwell,  1  Vcrn.  240.  543.      See   D'Albiac    v.   D'Albiac,    16 

^  Iledman  v.  Redman,   1  Vern.  848  ;  Ves.  124;  Morris  v.  Clarkson,  IJ.  &  W. 

Turton  v.  Benson,  1  P.  Wms.  496 ;  Scott  107. 

V.  Scott,  1  Cox,  366 ;  Palmer  v.  Neave,  ''  Gale  v.  Lindo,  1  Vern.  4*75 ;  Lamlee 

11  Yes.  166.  V.  Hanman,  2  Vern.  499. 

'  Neville  «.  Wilkinson,  1   Bro.  C.  C.  "  Barrett  ?^.  Wells,  Prec.  Ch.  131. 


the  deed  void.     Phettiplace  v.  Sayles,  4  Mason,  313;  Richards  v.  Hunt,  6 
Vt.  251 ;  Jackson  v.  Hodges,  24  Md.  469  ;  Seving  v.  Gale,  28  Ind.  486. 


PEAUD  UPON  THIED  PARTIES.  217 

share  witli  lier  brothers  and  sisters  of  all  his  personal  estates, 
transfers  afterwards  during  his  life  a  very  large  portion  of  his 
personal  property  to  his  son,  retaining  the  dividends  for  his 
own  life.  ^  Covenants  of  this  sort  do  not  prohibit  a  parent 
from  making  any  disposition  of  his  property  during  his  life- 
time among  his  children  more  favorable  to  one  than  another; 
but  they  do  prohibit  a  man  from  doing  any  acts  which  are 
designed  to  defeat  or  defraud  the  covenant.  A  parent  may,  if 
he  pleases,  notwithstanding  the  covenant,  make  an  absolute 
gift  to  a  child ;  but  the  gift  must  be  an  absolute  and  unqualified 
one,  and  must  not  be  a  mere  reversionary  gift,  which  saves  the 
income  to  the  parent  during  his  own  life.^ 

FRAUD  UPON  THE  IVIARITAL  EIGHTS. 
Another  class  of  transactions  which  will  be  relieved  against 
as  being  in  fraud  of  the  marriage  contract  are  conveyances 
made  by  an  unmarried  woman  of  her  property,  dm-ing  the 
treaty  of  marriage  without  the  knowledge  of  her  intended  hus- 
band, in  contravention  of  his  marital  rights,  or  in  disaj>point- 
ment  of  his  just  expectations.'*     Several  circumstances  appear 

'  Jones   V.  Martin,   3  Anst.    882,    5  dard  v.  Snow,  1  Rus3.  485 ;  England  v. 

Ves.  265  n. ;  8  Bro.  P.  C.  242.  See  Ran-  Downs,  2  Beav.  522 ;  Taylor  v.  Tugh.  1 

dall  V.  Willis,  5  Ves.  261 ;  M'Neill  v.  Ha.  608 ;  Llewellin  v.  Cobbold,  1  Sm. 

Cahill,  2  Blig'h,  228.    Comp.  Stocken  «.  &.    G.    3Y6;    Downes  v.  Jennings,    32 

Stocken,  4  M.  <fe  C.  95;  Bell  w.  Clarke,  Beav.    290.     See   Loader   v.    Clark,    2 

25  Beav.  436.  Mac.   &  G.  387 ;  Chambers  v.  Crabbe, 

'  Jones  V.  Martin,  3  Anst.  882,  5  Ves.  34  Beav.  457.     A  secret  settlement  by 

265  n.  ^   woman   of    her   property   during  a 

'  Lance  v  Norman,  2  Ch.  Rep.   41 ;  treaty  of  marriage,  is  not  necessarily 

Lady  Strathmore  v.  Bowes,  2  Bro.  C,  void  at  law.    Doe  d.  Richards  v.  Lewis, 

C.  345,  2  Cox,  33,  1  Ves.  Jr.  22;  God-  11  C.  B.  1035. 


*  Tucker*.  Andrews,  13  Me.  124;  Ramsay  v.  Joyce,  1  McMullan's  Ch. 
236;  Black  v.  Jones,  1  A.  K.  Marsh.  312;  Manes  «.  Durant,  2  Rich.  Eq. 
404 ;  Linker  v.  Smith,  4  Wash.  C.  C.  224. 

There  is  no  distinction  whether  the  conveyances  be  to  children  or  to  a 
stranger.    Ramsay  v.  Joyce,  1  Mc]\Iullan's  Ch.  236. 

A  conveyance  made  by  a  woman  in   discharge  of  the  moral  duty  of 
providing  for  the  children  of  a  former  marriage,  is  not  considered  a  fraud 
upon  the  intended  husband,  although  it  is  concealed  from  him.    Green  v. 
Goodall,  1  Cold.  404. 
15 


218  FRAUD  UPON  THIRD  PARTIES. 

to  have  been  thought  material  as  negativing  the  imputed 
fraud:  such,  for  instance,  as  the  poverty  of  the  husband,  the 
fact  that  he  has  made  no  settlement  on  the  wife,  the  fulfilment 
of  a  moral  obligation,  as  in  the  ease  of  a  settlement  upon  the 
children  of  a  former  marriage,  or  of  a  bond  given  to  secure  a 
debt  contracted  for  a  valuable  consideration,  or  the  fact  of  the 
ignorance  of  the  husband  that  his  wife  possessed  the  property.^ 
There  can  be  no  doubt  that  any  of  these  facts  would  be  a  good 
ground  for  insisting  that  there  should  be  a  settlement,  but  it 
is  not  so  easy  to  understand  why  they  should  constitute  reasons 
for  practising  concealment  upon  him,  or  for  treating  such  con- 
cealment as  immaterial.^  If  both  the  property  and  the  mode 
of  its  conveyance,  pending  the  marriage  treaty,  were  concealed 
from  the  intended  husband,  there  still  is  or  may  be  a  fraud  prac- 
tised on  him.  It  is  true  that  the  non  acquisition  of  the  prop- 
erty is  no  disappointment,  but  still  his  legal  right  is  defeated, 
and  the  conveying  away  of  the  property  for  the  benefit  of  a 
third  person,  or  the  vesting  and  continuance  of  a  sejDarate 
power  in  the  wife  over  property  which  ought  to  have  been  his, 
and  which  is,  without  his  consent  made  independent  of  his 
control,  is  a  surprise  upon  him,  and  might,  if  previously 
known,  have  induced  him  to  abstain  from  the  marriage.^ 
The  mere  fact,  however,  of  concealment,  or  rather  the  non- 
communication to  him,  is  not  necessarily,  and  under  all  cir- 
cumstances, equivalent  to  fraud.  In  the  absence  of  any 
representation  as  to  specific  property,  there  is  no  implied  con- 
tract on  the  part  of  the  lady  that  her  property  shall  not  be  in 
any  way  diminished  before  the  marriage:  but  it  is  for  the 
court  to  determine  in  each  case  whether  having  regard  to  the 

'Hunt  V.  MattheTTS,    1  Vern.   408;  533 ;  Lady  Strathmore  v.  Bowes,  2  Bro. 

Taylor  v.  Pua:li,  1  Ha.  608.  See  Downea  C.    C.    345,   6  Bro.  P.  C.  427,  1  Ves. 

V.  Jennings,  32  Beav.  290.  Jr.  22. 

'  England   v.   Downs,  2  Beav.   522,  '  Carlcton  v.  Earl  of  Dorset,  2  Vern, 

629;  Taylor  r.  Tugli,  1  Ila.  608,  613;  17;    Goddard    v.    Snow,    1   Kuss.  485; 

Chambers   v.    Cra'otie,    34    Beav.    457.  EngLind  v.  Downs,  2   Bcay.   522,  529; 

See  Poulson  v,  Wellington,  2  P.  Wms.  Downes  v.  Jennings,  32  Beav.  290. 


FRAUD  UPON  THIED  PARTIES.  219 

condition  of  the  parties  and  the  other  attendant  circumstances, 
a  transaction  complained  of  by  the  husband  should  be  treated 
as  fraudulent.^  *  Where  the  husband  has  so  conducted  him- 
self towards  the  intended  wife  that  she  cannot  without  dis- 
grace retire  from  the  marriage,  as  where  he  had  induced  her 
to  cohabit  with  him  before  marriage,  a  settlement  made  by 
her  of  her  property  without  his  knowledge,  will  not  be  treated 
as  in  fraud  of  his  marital  rights.^ 

The  equity  in  favor  of  the  husband  does  not  arise,  unless  it 
can  be  clearly  made  out  that  at  the  time  of  the  conveyance  of 
her  property  by  the  wife  there  was  an  engagement  of  mar- 
riage between  them.^  A  conveyance  to  be  fraudulent  must  be 
made  in  contemplation  of  a  particular  marriage.*  Kor  has  the 
husband  any  equity  to  set  it  aside,  if  before  the  marriage  he 
has  notice  that  tlie  intended  wife  has  dealt  in  some  way  with 
her  property.  It  is  essential  to  the  application  of  the  princi- 
ple that  the  husband  should,  up  to  the  moment  of  the  mar- 
riage, have  been  kept  in  ignorance  of  the  transaction.  If  he 
has  notice  before  the  marriage  that  the  lady  intended  to  make 
a  settlement  of  her  property,  and  nothing  took  place  to  justify 
a  belief  on  his  part,  that  at  the  time  of  the  marriage  no  such 
settlement  had  been  made,  he  has  no  equity  to  set  it  aside, 
although  he  may  not  be  proved  to  have  been  aware  of  any  set- 
tlement having  been  actually  made.  If  the  husband  has  notice 
that  the  propei-ty  has  been  in  some  way  dealt  with  and  makes 
no  inquiry,  he  is  bound  by  what  has  been  done.  It  is  enough 
that  he  had  notice  of  the  intended  settlement,  though  he  may 
not  have  been  aware  of  the  trusts.^ 

•  De  Manneville  v.  Compton,  1  V.  <fe  '  En-rland  v.  Do-mig,  2  Beav.   622; 

B.  ?.f.4  ;  St.  Gei  i£ic  v.  W:  kc,  1  M.  &  K.  Gri^'ss  v.  Staplce,  2  Dcj?.  <fe  S.  572. 

310;  Taylor  v.  Puuli,  1  Ila.  608.  ■*  Jlabor  v.  Hobbs.  2  Y.  <fe  C.  317. 

=  Taylor  v.  Tu^h,  1  Hu,  608.  "  St.  George  v.  Wake,  1  M.  &  K.  610; 


*  Caldwell  v.  Gillis,  2  Port.  52G  ;  Crump  v.  Dudley,  3  Call.  507 ;  M'Clure 
V.  Miller,  1  Bailey's  Ch.  107. 


220  FRAUD  UPON  THIED  PAETIES. 

If  a  bond  be  given  by  a  woman  before  marriage  to  secure  a 
debt  contracted  for  valuable  consideration,  there  is  no  fraud  on 
the  husband  though  it  be  concealed  from  him.^ 

The  right  of  the  husband  to  impeach  a  transaction,  as 
being  in  fraud  of  his  marital  rights,  may  be  lost  by  acqui- 
escence or  delay ;  ^  nor  have  his  representatives  after  his  death 
any  equity  against  the  wife,  if  he  does  not  before  his  death 
discover  the  fraud  upon  his  marital  rights.^* 

MARRIAGE  AND  PLACE  BROKAGE  BONDS. 

Another  class  of  transactions  which  are  relieved  against  aa 
being  in  fraud  of  third  parties,  are  contracts  or  agreements  to 
negotiate  a  marriage  between  two  parties  for  a  certain  compen- 
sation.*   In  some  early  cases,  Grisley  v.  Lother,^  and  a  case 

Ergland  v.  Downs,  2  Beav.  522  ;  Grij^gs  G.  882 ;  Downes  v.  Jennings,  32  Beav. 

V.  Staplee,  2  Deg.  &  S.  572 ,  Wrigley  v.  290.     See  i7ifra. 

Swainson,  3  Deg.  <fe  S.  458.     See  Pri-  '  Grazebrook    v.    Percival,    14  Jur. 

deaux  v.  Lcnsdale,  1  D.  J.  &  S.  433.  1103, 

»  Blanehet  v.  Foster,  2  Ves.  264.  "  See  "Worsley  v.  De  Mattos,  1  Burr. 

"^  De  Manneville  v.  Compton,  1  V.  <fe  476,  per  Lord  Mansfield. 

B.  354;  Loader  v.  Clarke,  2  Mac.   &  *  Hob.  10. 


♦  A  conveyance  made  by  a  man  in  contemplation  of  marriage,  for  the 
purpose  of  defrauding  his  wife,  is  void.  Petty  v.  Petty,  4  B.  Mon.  215 ; 
Swain  v.  Perine,  5  Jolins.  Ch.  482;  Smith  «.  Smith,  2  Halst.  Ch.  515; 
Deal-man  «.  Dearman,  10  Ind.  191 ;  Tate  v.  Tate,  1  Dev.  &  Bat.  Eq.  22. 

There  can  be  no  doubt  of  the  power  of  a  husband  to  dispose  absolutely 
of  his  property  during  his  life  independently  of  the  concurrence,  and  exon- 
erated from  any  claim  of  his  wife,  provided  the  transaction  is  not  merely 
colorable  and  be  unattended  with  circumstances  indicative  of  fraud  upon 
the  rights  of  the  wife.  If  the  disposition  by  the  husband  be  l)07id  Jide^ 
and  no  right  is  reserved  to  him,  though  made  to  defeat  the  right  of  the 
wife,  it  will  be  good  against  her.  Dunnock  «.  Dunnock,  3  Md.  Ch.  140 ; 
Cameron  v.  Cameron,  10  Smed.  &  Mar.  394;  Lightfoot  \\  Colgin,  5  Munf. 
42 ;  Stewart  v.  Stewart,  5  Ct.  317 ;  Holmes  r.  Holmes,  3  Paige,  363. 

If  the  disposition  of  the  property  by  the  husband  is  a  mere  device  or 
contrivance  by  which,  not  parting  with  the  absolute  dominion  over  the 
property  during  his  life,  he  seeks  at  his  death  to  deny  his  widow  the  share 
in  his  estate  which  the  law  assigns  to  her,  it  will  be  ineffectual  against 
her.  Hays  t.  Henry,  1  Md.  Ch.  337;  Thayer  v.  Thayer,  14  Vt.  107 ;  Rey. 
nolds  ».  Vance,  1  Heisk.  344. 


FRAUD  UPON  THIRD  PARTIES.  221 

cited  in  Hall  v.  Potter,*  a  marriage  brokage  bond  was  held 
good  at  law ;  but  these  cases  cannot  be  considered  law.  The 
better  opinion  would  seem  to  be  that  a  marriage  brokage  bond 
is  void  at  law  upon  grounds  of  public  policy.  In  equity  it  has 
long  been  settled  that  such  bonds  will  be  relieved  against,  as 
well  upon  grounds  of  public  policy,  as  because  they  tend  to 
induce  the  exercise  of  undue  influence  in  the  promotion  of 
marriages,  and  are  a  fraud  on  the  families  of  those  who  are  so 
induced  to  marry  without  taking  the  advice  of  their  friends.^ 
Marriage  brokage  contracts  are  so  adverse  to  public  policy  as 
not  to  be  capable  of  confirmation;^  and  even  money  paid 
under  them  may  be  reclaimed.-*  It  makes  no  difference  that 
the  marriage  is  between  persons  of  equal  rank,  age,  and  for- 
tune, for  the  contract  is  equally  open  to  objection  upon 
general  principles  as  being  of  dangerous  consequence.^  The 
principle  has  even  gone  further,  and  a  bond  given  for  assisting 
a  clandestine  marriage  has  been  set  aside,  though  given  volun- 
tarily after  the  marriage  and  without  any  previous  agreement 
for  the  purpose.® 

Upon  a  similar  ground,  if  a  parent  or  guardian,  or  any 
person  nearly  connected  to  a  party,  privately  connive  with  a 
third  person,  and  agree  to  procure  a  marriage  between  such 
parties  in  consideration  of  a  certain  compensation,  or  agree 
upon  payment  of  a  certain  sum  to  consent  to  such  marriage, 
the  contract  is  utterly  void  upon  the  ground  that  it  is  a  bar- 


J  3  "Lev.  412.  ^ov  their  services  to  a  limited  extent. 

'«  Hall  V.  Potter,  3  Lev.  412,  Show,  P.  Story's  Eq.  Jur.  260. 

C.  76  ;  Arundel  v.  Trevillian,  1  Ch.  Rop.  '  Cole  v.   Gibson,   1  Ves.    503,    506, 

47  ;  Law  v.  Law,  Ca.  t.  Talb.  140,  142 ;  507 ;    Rocho   v.  O'Brien,  1  Ba.  &  Be. 

Cole  >;.  Gibson,  1  Ves.  503 ;  Vauxhall  358. 

Bridge  Co.  «.  Spencer,  Jac.  67 ;  Boyn-  ''Smith   v.  Bruning,    2   Vern.    392; 

ton  V.  Hubbard,  7  Mass.  (Auier.),  112.  Goldsmith  v.  Bruning,  1  Eq.  Ca  Ab.  89. 

The  civil  law  does  not  seem  to  have  '  Hall  v.  Potter,  3  Lev.  411,  1  Fonb. 

held  contracts  of  this  sort  in  such  se-  bk.  1,  c.  4, 5^  10. 

vere  rebuke,  for  it  allowed  proxexetce,  *  Williamson  v.  Gibson,  2  Sch.  &,  Lef. 

or  match-makers,  to  receive  a  reward  35'?. 


222  FRAUD  UPON   THIRD  PARTIES. 

gain  in  contravention   of  the  riglits  of  third  parties,  whose 
interests  are  thus  controlled  and  sacrificed.^ 

Of  a  kindred  nature  to  marriage  brocage  contracts,  and 
governed  by  the  same  rule,  are  cases  where  bonds  are  given, 
or  other  ao:reem3nts  made  as  a  reward  for  using  iufluance  and 
power  over  another  person  to  induce  him  to  make  a  will  in 
favor  of  the  obligee  and  for  his  benefit,  for  all  such  contracts 
tend  to  the  deceit  and  injury  of  third  parties,  and  encourage 
artifice  and  improper  attempt  to  control  the  exercise  of  their 
free  judgment.^  But  such  cases  are  carefully  to  be  distin- 
guished from  those  in  which  there  is  an  agreement  among 
heirs  or  other  near  relatives  to  share  the  estate  equally  be- 
tween them,  whatever  may  be  the  will  made  by  the  testator; 
for  such  an  agreement  is  generally  made  to  suppress  fraud 
and  undue  influence,  and  cannot  truly  be  said  to  disappoint 
the  testator's  intention,  if  he  does  not  impose  any  restriction 
on  his  devisee.^ 

Of  a  kindred  nature  to  marriage  brokage  contracts  are 
office  brokage  bonds.  Bonds  of  this  sort  are  fraudulent,  and, 
therefore,  void  upon  grounds  of  public  policy,  the  tendency  of 
such  bonds  being  to  introduce  unfit  persons  into  places  of 
great  public  trust,  and  to  defraud  the  public  of  the  service  of 
the  most  efficient  candidates  or  officers.* 

BONDS  TO  MARRY. 
A  bond  given  by  a  young  woman  secretly  to  a  man,  condi- 
tioned to  pay  him  a  sum  of  money,  if  she  did  not  marry  him 
on  the  death  of  the  parent  or  other  individual  from  whom  she 
has  expectancies,  but  kept  secret  from  him,  is  in  equity  looked 

'Pevton  V.  Bladwell,  1  Vern.    240;  ered  v.  Wethered,  ib.  183;  Stor/a  Eq. 

Stribbleliill  v.  Brett,  2  Vern.  445;  Kent  Jur.  265,  785. 

V  Allen,  ih.  588,   1  Fonb.  Eq.  bk.  1,  c.  *  Law  v.  Law,  Ca.  t.  Talb.  140,  3  P. 

4,  S  11  ;  Story's  Eq.  Jur.  266,  267.  Wms.  391 ;  Morris  v.  M'Culloch,  2  Eden, 

'»' Deb'enham  v.  Ox,  1  Ves.  276.  190;   Hannington  v.  Du  Cbatel,  1  Bro. 

'  Beckley  v.  Newland,  2  P.  Wm.  181;  C.  C.  124 ;  Ilartwell  >'.  llartwcU  4  Ves. 

narwood  V.  Tooke,  2  Sim.  192;  Wetli-  811;  Osborne  i'.  Williams,  18  Ves.  379= 


FRAUD  UPON   TniED  PAETIES.  223 

on  as  a  fraud  on  the  parent  or  other  individual,  from  whom  she 
has  expectations,  who  disapproved  of  the  marriage,  and  might 
be  misled  into  making  a  provision  for  her,  which,  had  he 
known  of  the  bond,  he  might  have  done  in  such  a  manner  as 
would  have  prevented  the  marriage.* 

FRAUD  IN  WITHHOLDING  CONSENT  TO  MARRIAGE. 

Gifts  and  legacies  are  often  bestowed  upon  persons  upon 
condition  that  they  shall  not  marry  without  the  consent  of 
parents,  guardians,  or  other  confidential  persons.  If  such  con- 
sent to  the  marriage  is  withheld  from  a  corrupt  motive,  the 
Court  of  Chancery  may  interfere.  It  has  been  contended  that 
if  the  person  whose  consent  is  req[uired  is  interested  in  with- 
holding it,  he  must  show  a  reason  for  his  dissent.  But  if  the 
author  of  the  trust  chooses  to  require  the  consent  of  a  person 
whom  he  knows  at  the  time  to  have  an  interest  in  refusing  it, 
it  is  difficult  to  conceive  an  equity  interfering  with  his  choice. 
At  all  events  no  equity  will  arise  if  the  trustee  has  meant  to 
act  honestly,  though  his  decision  may  not  be  the  same  as  that 
at  which  the  court  would  have  arrived.^ 

FRAUD  IN  RESPECT  OF  EXPECTANCIES. 

It  would  appear  to  have  been  partly,  if  not  mainly,  on  the 
ground  that  a  bargain  with  an  expectant  heir  in  respect  of  his 
expectancy  during  the  life,  and  without  the  knowledge  of  the 
person  from  whom  the  expectancy  was  looked  for,  was  a  fraud 
on  the  latter,  that  a  bargain  with  an  expectant  heir  was  liable 
to  be  opened  and  set  aside  upon  the  ground  merely  of  under- 
value.^ A  fair  and  hond  fide  agreement,  however,  between 
expectants  to  share  equally,  or  in  a  certain  manner,  the  prop- 

•  Woodhouse  v.  Shcpley,  2  Atk.  536;       Sw,  140,  14'^;  Kini^  Hamlet,  2  M.  <t  K, 
Cock  V.  Richards,  ]0  Ves!"  429.  456.     But  see  now  31  Vict.  c.  4,  supra 

"  Clarke  ».  Parker,  19  Ves.  1.  p.  187  n. 

•  Davis  V,   Duke  of  ilurlborougli,  2 


224  rHAUD  UPON  THIED  PARTIES. 

erty  wliicli  might  be  left  them,  although  entered  into  behind 
the  back  of  the  person  from  whom  the  expectancy  is  looked 
for,  has  always  been  held  valid  in  equity.^ 

FRAUD  IN  RESPECT  OF  SALES  BY  AUCTION. 
Agreements  whereby  parties  for  the  purpose  of  preventing 
competition  at  an  auction,  and  of  depressing  the  value  of  the 
property  below  its  market  price,  engage  not  to  bid  against  each 
other,  have  been  held  in  some  American  cases  to  operate  as  a 
fraud  upon  third  parties.^  *  But  it  is  difficult  to  see  upon  what 
principle  it  can  be  maintained  that  a  mere  agreement  between 
two  persons,  each  desirous  of  effecting  the  pm-chase  of  an 

'Beckley  v.  Fewland,  2  P.  Wms.  182;  29  ;  Doolin  v.  Ward,  6  Johns.  ( Amer.) 

Wethered   v.    Wethered,   2   Sim.   183;  194;   Wilbur  v.  How,  8  Johns.  (Amer.) 

Harwo)d   v.    Tooke,   ik    192;  Hyde  t;.  444;  Ilawley  v.  Cramer,  4  Cow.  (Amer.) 

White    5  Sim.  524;  Lyde  v.  Mynn,  1  111;    Brisbane   v.    Adams,    3    Corast. 

M  <fe  k.  683.    See  Hougliton  y.  Lees,  1  (Amer.)    129;    Story's   Eq.   Jur.    293. 

Jur.  N.   S.  862 ;  Heap  v.  Tonge,  9  Ha.  See  also  Fuller  v.   Abrahams,  6  Moo. 

100.  316. 

•  Jones  V.  Caswell,  3  Johns.  (Amer.) 


*  Troup  V.  Wood,  4  Johns.  Ch.  228;  Grant  v.  Lloyd,  12  Smed.  &  Mar. 
191;  Martin  v.  Ranlett,  5  Rich.  541 ;  Wooten  v.  Iliukle,  20  Mo.  290;  Dud- 
ley??. Little,  2  Ohio,  508;  Piatt  v.  Oliver,  1  McClenn,  295;  Guiickv.  Ward, 
5  Halst.  87 ;  Martin  v.  Blight,  4  J.  J.  Marsh.  401. 

The  law  does  not  tolerate  any  influence  likely  to  prevent  coaipetition 
at  judicial  sales,  and  it  accords  to  every  dabtor  tlie  chances  for  a  fair  sale 
and  full  price.     Cocks  v.  Izard,  7  Wall.  559. 

It  is  essential  to  the  validity  of  tax  sales,  not  merely  that  they  should 
be  conducted  in  confonnity  to  the  requirement  of  law,  but  that  they 
should  be  conducted  with  entire  fairness.  Perfect  freedom  from  all  in- 
fluence likely  to  prevent  competition  in  the  sale  should  be  strictly  exacted. 
Slater  r.  Maxwell,  6  Wall.  2G8. 

A  sale  of  real  estate  en  masse,  instead  of  in  separate  parcels,  will  only 
be  set  aside  upon  the  ground  of  fraud  or  prejudice  to  some  one's  rights. 
Rose  V.  Mead,  5  Gilman,  171. 

-  The  mere  fact  that  the  purchase  was  made  by  an  association  formed 
for  the  purpose  of  bidding,  does  not  make  a  sale  void.  If  the  object  and 
puipose  of  the  association  are,  not  to  prevent  competition,  but  to  enable, 
or  as  an  inducement  to,  the  persons  composing  it  to  participate  in  the  bid- 


FRAUD  UPON  THIRD  PARTIES.  225 

estate,  that  thej  will  not  bid  against  each  other,  but  that  one 
shall  retire  and  leave  the  field  open  to  the  other,  can  be  held 
to  invalidate  the  sale,  and  in  two  cases  before  our  own  courts, 
an  agreement  to  this  effect  has  been  held  good.^ 

•  The  secret  employment  bj  the  owner  of  property  of  a 
puffer,  or  underbidder,  at  a  sale  by  auction  of  the  property,  is 
at  law  a  fraud  upon  hona,  fide  bidders  ;  nor  can  the  owner  bid 
privately  for  his  own  property.  All  secret  dealing  on  the  part 
of  the  seller  is  deemed  fraudulent.  If  he  be  unwilling  that 
his  goods  shall  be  sold  at  an  under  price,  he  may  order  them  to 
be  set  up  at  his  own  price  or  not  lower,  or  he  may  previously 
declare  as  a  condition  of  the  sale,  that  it  is  subject  to  a  reserved 
price.^  *    In  equity,  however,  a  vendor  could  lawfully,  without 


'  Galton  V.  Emuss.  1  Coll.  243  ;  Re  »  Bexwell  v.   Christie,    Cowp.    395 ; 

Carew's  Estate,  26  iieav.  187.    See  also  Howard  w.  Castle,  6  T.  R.   042;  Thor- 

Pliippen  V.   Slickuey,  3  Mete.  (Amer.)  nett  v.  Haines,  15  M.  &  W.  367;'  Green 

884;    Snell   v.    Jones,   6    Serj.    &,    R,  v.  Baverstocke,  14  C.  B,  N.  S.  204. 
(Amer.)  122. 


ding,  the  sale  will  be  tiplield.  Kearaey  v.  Taylor,  lo  How.  494  ;  Goode  v. 
Hawkin,  3  Dev.  Eq.  393;  Smith  v.  Greenlee,  3  Dev.  136;  Smull  v.  Jones, 
1  M.  &  S.  138;  Phippen  v.  Stickney,  3  Mat.  387;  contra,  Thompson  v. 
Davis,  13  Johns.  113;  Dudley  ^).  Little,  1  Ohio,  503;  Switzer  v.  Skiles,  3 
Gilman,  539 ;  Wolf  v.  Luyster,  1  Hall,  146. 

A  parchuser  who  uses  unfair  meaas  to  prevent  competition  cannot  hold 
the  property.  Newman  v.  Meek,  1  Freeman's  Ch.  441 ;  Johnston  v.  La 
Motte,  6  lUch.  Eq.  347 ;  Plaster  v.  Burger,  5  Ind.  333. 

It  is  no  fraud  for  a  purchaser  to  declare  that  he  intends  to  give  the 
property  to  the  debtor,  or  let  him  redeem,  when  such  is  really  his  intention. 
To  make  a  purchase  void,  it  must  be  proved  that  the  property  was  ob- 
tained at  an  undue  value  an  1  by  a  f  ilse  representation.  Dick  v.  Cooper, 
34  Penn.  317;  Benedict  v.  Gilman,  4  Paige,  58;  Brown  v.  Lynch,  1  Paige, 
147. 

*  Towle  V.  Leavitt,  33  N.  H.  3G0;  Moncrieff  v.  Goldsborough,  4  H.  & 
Mc.  H.  381 ;  Wolf  «.  Luyster,  1  Hall,  146;  Wood  v.  Hall,  1  Dsv.  Eq.  411 ; 
Staines  ?•.  Shores,  16  Penn.  300;  Trust  v.  Dalaplaine,  3  E.  D.  Smith,  319; 
Donakboi  «.  M'Roy,  1  Brown,  346;  Smith  v.  Greenlee,  3  Dev.  12(5;  Jen- 
kins V  n  )gpr,  3  Const.  R.  821;  Baham  v.  Bach,  13  La.  387;  Woods  ». 
Hall,  13  La.  411 ;  Moreheadii.  Hunt,  1  Dev.  &  Bat.  Eq.  35. 


226  FEAUD  UPON  THIRD  PARTIES. 

any  express  stipulation,  or  without  making  the  fact  publicly 
known,  fix  a  reserved  price  and  employ  a  person  to  bid  for 
him,  so  as  to  prevent  the  property  going  under  that  price ;  but 
if  more  than  one  person  be  employed  to  bid,  or  if  the  object 
of  the  employment  of  a  bidder  be  to  run  up  and  enhance  "the 
price,  or  if  the  sale  profess  to  be  without  reserve  and  a  bidder 
be  nevertheless  employed,  there  is  a  fraud  in  equity  as  well  as 
at  law.^  Lord  Cranworth,  in  Mortimer  v.  Bell,^  and  Knight 
Bruce,  L.  J.,  in  "Woodward  v.  Miller,^  animadverted  upon  the 
inconvenience  of  there  being  a  conflict  between  the  rules  at 
law  and  equity  upon  the  subject,  and  said  they  considered  the 
rule  at  law  more  salutary  than  the  rule  which  had  been  adopted 
by  courts  of  equity.  Witli  the  view  accordingly  of  obviating 
this  inconvenience  in  the  case  of  sales  by  auction  of  land,  and 
of  assimilating  the  rules  of  law  and  equity,  it  has  been  lately 
enacted  by  30  &  31  Yict.  c.  48,  that  particulars  or  conditions 
of  sale  by  auction  of  land  shall  state  whether  the  sale  be  with 
or  without  reserve  ;  and  that,  if  the  sale  is  stated  to  be  without 
reserve,  the  seller  may  not  employ  any  person  for  him  ;  *  but 
that,  if  the  sale  is  stated  to  be  subject  to  a  reserved  price,  the 
seller,  or  any  person  named  on  his  behalf,  may  bid.^  The  stat- 
ute does  not  affect  any  species  of  property  other  than  land. 

VOLUNTARY  CONVEYANCES  IN  FRAUD  OF  SUBSEQUENT 
PURCHASERS. 

Another  class  of  frauds  upon  third  parties  is  that  of  volun- 

»  Smith    V.    Harke,    12    Ves.    411;  '' L.  R.  1  Ch.  App.  10. 

■Wood.vai-d  v.  Millt-r,  2  Coll.  279;  Rob-  »  2  Coll.  279. 

inson   v.    Wall,    2   Ph.    372;    Flint   v.  ••  Sec.  5. 

Woodin,  9  Ua.  618.  "  Sec.  6. 


An  auctioneer  cannot  make  fictitious  bids.  Veazie  v.  Williams,  8  How. 
134. 

An  auctioneer  who  sells  below  tlie  sum  fixed  by  the  vendor,  is  liable 
for  the  difference.     Steele  v.  Ellmaker,  11  S.  &  R.  86. 


FEAUD  UPON  THIRD  PARTIES.  227 

tary  conveyances  of  real  estate  in  regard  to  subsequent  pur- 
chasers. By  tlie  27  Eliz.  c.  4,  made  perpetual  by  39  Eliz.  c. 
18,  §  31,  all  conveyances,  &c.,  of  any  hereditaments  for  the 
intent  and  purpose  to  deceive  purchasers  are  made  void  as 
against  them.^  Courts  of  equity  had  jurisdiction  in  the  matter 
long  before  the  statute.  The  act  has  not  defeated  the  jurisdic- 
tion, but  only  gives  a  more  clear  and  distinct  jurisdiction,  and 
a  more  extended  remedy .^  A  voluntary  conveyance,  is,  by  the 
statute,  void  as  against  a  subsequent  purchaser,  although  it 
may  have  been  hond  fide  and  for  good  consideration,  and 
although  the  purchaser  may  have  had  full  notice  of  the  volun- 
tary conveyance.  The  statute  in  every  such  case  infers  fraud, 
and  will  not  allow  the  presumption  to  be  rebutted.^  *  A  vol- 
untary conveyance  will  not  be  supported  against  a  subsequent 


•  See  Perry  Herrick  v.  Attwood,  2  D.  vertoft  v.  rulvertoft,  1 8  Ves.  84,  86  ; 
^  J   21.  Buclde  V.   Mitchell,  ib.  100;   Kelson  w. 

2/5   '  Kelson,  10  Ha.  385;   Dakin;^-  r.  Whim- 

*  Taylor  v.   Stile,  cit.   Su?.  V.  &  P  per,  26  Beav.  508 ;  Clarke  v.  Wriglit,  6 
714;  Evelyn  v.  Templar,  2'Bro.  C.  C.  H.  «fe  N.  849. 

148 ;  Doe  v.  Manning,  9  East,  59  ;  Pul- 


♦  Clanter  «.  Burgess,  2  Dev.  Eq.  13;  Freeman  v.  Eatman,,3  Irocl.  Eq. 
81 ;  Andsrson  v.  Green,  7  J.  J.  Marsb.  448 ;  Bariincas3  «.  M'Murray,  3  Bre- 
vard, 204  ;  Carter  v.  Cartlebury,  5  Ala.  377 ;  Latter  v.  Morrison,  1  Ired. 
149;  Elliott  V.  Horn,  10  Ala.  348;  Ricker  ®.  Ham,  14  Mass.  137;  Clapp 
V.  Tirnll,  20  Pick.  247;  Tate  v.  Leggatt,  3  Leigh,  84;  Bell  v.  Blaney,  2 
Murph.  181. 

The  received  construction  in  England  of  the  British  statutes  at  the 
time  of  our  separation  from  the  British  empire,  may  be  considered  as  accom- 
panying the  statutes  and  foraiing  an  integral  part  of  them.  Subsequent 
decisions  are  entitled  to  respect,  but  are  not  absolute  authority.  At  the 
commencement  of  the  American  Revolution  the  construction  of  the  statute 
of  27th  Elizabeth  was  not  settled.  The  principle  adopted  in  this  country 
in  continuing  the  statute,  is,  that  a  subsequent  sale  without  notice  by  a 
person  who  has  made  a  settlement  not  on  valuable  consideration,  is  pre- 
sumptive evidence  of  fraud,  and  throws  on  the  person  claiming  under  such 
settlement  the  burden  oT  proving  thit  it  was  madj  honl  Jide.  Calhcartt). 
Robinson,  5  Pet.  264 ;  Lyne  v.  Bank  of  Kentucky,  5  J.  J.  Marsh.  o45  ;  Ver- 


228  FRAUD  UPON  THIRD  PARTIES. 

purchaser,  even  altliongli  it  may  have  been  made  by  the  direc- 
tion of  the  com-t.^  A  purchaser  cannot,  however,  avail  himself 
of  the  provisions  of  the  statute  unless  he  has  purchased  lond 
fide  and  for  a  valuable  consideration.     The  consideration  must 

'Martin  v.  Martin,  2  R.  &  M.  507;  Dart,  V.  <fc  P.  576. 


planet  v.  Sterry,  12  Jolins.  536 ;  s.  c.  1  Johns.  Ch.  260 ;  Bank  of  Alexan- 
dria V.  Patton,  1  Rob.  499  ;  Lancaster  v.  Dolan,  1  Rawle,  231 ;  Footman  v. 
Pendergrass,  3  Rich.  Eq.  38 ;  Corprew  v.  Arthur,  15  Ala.  525  ;  Mayor  t&  City 
Council  of  Baltimore  v.  Williams,  6  Md.  235;  Fowler  v.  Stoneum,  11  Tex. 
478 ;  Wells  v.  Treadwell,  28  Miss.  717 ;  Brown  v.  Bucks,  22  Geo.  574 ;  Gard- 
ner «.  Booth,  31  Ala.  136 ;  Gardner  v.  Cole,  21  Iowa,  205  ;  Jackson  v.  Town, 
4  Cowen,  603  ;  Seward  v.  Jackson,  8  Cow.  406 ;  Wickes  v.  Clarke,  8  Paige, 
165 ;  Beal  v.  Warren,  2  Gray,  440 ;  Salmon  v.  Bennett,  1  Ct.  525. 

The  act  does  not  apply  to  conveyances  made  by  the  State,  because  it 
operates  upon  the  intent  of  the  person  conveying,  and  the  State  cannot 
legally  be  said  to  intend  to  defraud  any  person.  Dodson  v.  Cooke,  1  Over- 
ton, 314. 

The  same  circumstances  wbich  would  render  a  deed  fraudulent  if  the 
grantor  had  owned  the  legal  estate,  likewise  render  it  fraudulent  considered 
as  a  mere  assignment  of  his  equity.  The  claimant  of  an  equity  whose 
claim  is  based  upon  a  valuable  consideration,  must  prevail  over  a  prior 
claim  to  the  same  equity  based  upon  a  good  consideration  merely.  Lyne 
«.  Bank  of  Kentucky,  5  J.  J.  Marsh.  545. 

To  make  a  voluntaiy  conveyance  void,  it  must  be  covinous  and  fraud- 
ulent, and  not  voluntary  merely,  and  the  evidence  of  fi-aud  must  be 
pointed.     Clayton  v.  Brown,  17  Geo.  217 ;  Cooke  v.  Kell,  13  Md.  469. 

The  doctrine  only  applies  where  both  conveyances  are  made  by  the 
same  person.  Russell  v.  Kearney,  27  Geo.  96 ;  Bell  v.  McCauley,  29  Geo. 
355. 

A  voluntary  conveyance  without  actual  fraud  is  valid  agf\inst  a  subse- 
quent purchaser  for  valuable  consideration  with  natice  of  the  prior  con- 
veyances. Bank  of  Alexandria  v.  Patton,  1  Rob.  499  ;  Anderson  v.  Green, 
7  J.  J.  Marsh.  448  ;  Foster  v.  Walton,  5  Watts,  378  ;  Hudnal  t\  Wilder,  4 
McCord,  294;  Footman  v.  Pendergass,  3  Rich.  Eq.  33;  Frisbie  v.  McCarty, 
1  Stew.  &  Port.  68;  Mayor  &  C.  C  of  Baltimorj  v.  Williams,  6  Md.  235; 
Dougherty  «.  Jack,  5  Watts,  456;  Speise  v.  McCoy,  6  W.  &  S  485  ;  Moul- 
trie V.  Jennings,  2  McMullan,  508  ;  Howard  «.  Williams,  1  Bailey,  575 ; 
Sanger  v.  Eastwood.  19  Wend.  514  ;  Shaw  v.  Levy,  17  S.  &  R.  99 ;  Tate  v. 
Liggatt,  2  Leigh,  84  :  Hiatt  v.  Wade,  8  Ired.  340 ;  Brown  v.  Buck,  22  Geo. 
574 ;  Chaffin  v.  Kimball,  23  I'.l.  36 ;  Coppage  v.  Barnett,  34  Miss.  021 ; 
Enders  v.  Williams,  1  Met.  (Ky.)  346  ;  Aiken  v.  Bruen,  21  Ind.  137. 


FEAUD  VVO'S  THIRD  PAETIES.  229 

not  be  so  small  as  to  be  palpably  fraudulent.^"  In  order  that 
a  subsequent  conveyance  for  value  should  defeat  a  prior  volun- 
tary conveyance,  it  is  also  essential  that  both  conveyances 
should  be  made  by  the  same  person.  An  heir  or  devisee  can- 
not by  a  conveyance  for  value  defeat  a  voluntary  settlement 
made  by  his  ancestor  or  testator ;  ^  nor  will  equity  interfere  in 
favor  of  a  subsequent  purchaser,  where  the  voluntary  grantee 
has  conveyed  it  to  a  ho7id  fide  purchaser  for  value,  or  a  person 
has  intermarried  with  the  voluntary  grantee,  on  the  faith  of  the 
voluntary  deed,  before  the  'bond  fide  purchaser  from  the  volun- 
tary grantee  acquired  his  title.^f 

A  contract  to  sell  the  settled  estate  to  a  person  with  full 
notice  of  the  voluntary  settlement,  will  be  enforced  at  the  suit 


'  Hnrnphreys  v.  Pensam,  1  M.  AC.  •  Parker  v.  Carter    4  Ha.  409  ;  Doe 

580;  Roberts  v.  Williams,  4  Ila.  130:  v.    Rusliam,    17   Q.  B.    ^'iS;  Lewis  v. 

Kelson  v.  Kelson,  10  Ha.  385;  Sug.  V.  Rees,  .3  K.  <fe  J,  i;?2 

<fe  P.  713.  *  aug.  V.  <fe  P.  720,  721. 


A  record  of  a  deed  is  constructive  notice  to  all  subsequent  purchasers. 
Cooke  «.  Kell,  13  Md.  469  ;  Bell  ®,  Blaney,  2  Murph.  171 ;  Cain  «  Jones,  5 
Yerg.  249 ;  Bank  of  Alexandria  «.  Patton,  1  Rob.  499 ;  Lancaster  v.  Dolan, 
1  Rawle,  231 ;  M'Xeely  v.  Rucker,  6  Blackf.  391 ;  contra,  Lewis  v.  Love,  3 
B.  Mon.  345 ;  Enders  v.  Williams,  1  Met.  (Ky.)  34(5. 

When  a  deed  is  actually  fraudulent,  the  constructive  notice  arising  from 
recording  will  not  defeat  the  right  of  a  subsequent  purchaser.  Gardner 
V.  Cole,  21  Iowa,  205. 

*  FuUenwider  v.  Roberts,  4  Dev.  &  Bat.  278 :  Tate  v.  Tate,  1  Dev.  & 
Bat.  Eq.  22. 

No  man  is  a  subsequent  purchaser  except  him  to  whom  a  conveyance 
has  been  executed  for  a  valuable  consideration,  by  which  there  is  conveyed 
to  him  an  estate  in  the  premises  either  of  freehold  or  for  years  or  some  rent 
or  profit  therein.  A  covenant  to  convey  is  no  such  sale  as  constitutes  the 
covenantee  a  subsequent  purchaser.  He  must  have  a  legal  title  such  as  he 
can  enforce  at  law,  and  not  a  mere  equity.  Hopkins  «.  Webb,  9  Humph. 
519. 

t  Anderson  v.  Green,  7  J.  J.  Marsh.  448;  Sterry  v.  Arden,  1  Johns.  Ch. 
260. 


233  FRAUD  uro:^  third  pahties. 

of  ihe  piircliaser ;  ^  but  the  seller  cannot  compel  a  specific  per- 
formance of  the  contract.'^  A  trust  created  by  a  voluntary 
settlement  will  be  carried  into  execution  until  sale ;  but  an 
injunciion  -will  not  be  granted  restraining  the  settler  from 
defeating  the  settlement  by  a  sale,^  nor  will  the  pendency  of  a 
suit  prevent  the  settler  from  selling  the  property,  or  the 
purchaser  from  filing  a  bill  in  order  to  enforce  his  rights  under 
the  contract.*  When  a  voluntary  settlement  is  avoided  by  a 
Bubsequent  sale,  the  volunteers  have  no  ecLuity  against  the 
purchase  money  payable  to  the  settler." 

As  between  the  parties  themselves,  and  as  against  other 
voluntary  grantees  of  the  same  estate,  voluntary  conveyances 
are  binding.^  *  A  voluntary  settlement  will  be  defeated  by  a 
conveyance  or  settlement  for  value  only  to  the  extent  neces- 
sary to  give  effect  to  the  conveyance  or  settlement  for  value.' 
As  between  two  volunteers,  the  conveyance  which  is  prior  in 
date  will  prevail,  if  it  be  ho?id  fide?'  A  subsequent  volunteer 
cannot,  by  selling  for  value,  confer  any  title  on  a  purchaser  as 
against  a  grantee  of  the  same  estate  who  is  prior  in  date."  A 
judgment  creditor  not  being  a  purchaser  within  the  meaning 
of  the  statute,  has  no  title  on  that  ground  to  set  aside  a  prior 
voluntary  settlement.^"  f     Though  a  settlement  may  appear  on 

'Buckle    V.  Mitchell,  18  Yes.   100;  •Bill  v.  Cureton,  2  M.  A  K.  503; 

Currie  v.  Nind,  1  M.  &.  C.  17;   Willats  Doe  v.  Paisham,  17  Q.  B.  723;  Lewis  v. 

V.  Busby,  5  BeaT.  193;  Lister  v.  Tur-  Kees,  3  K.  <fe  J.  132. 

per,  5  Ha.  291 ;  Su?.  V.  <fe  P.  720.  '  Croker  v.  Martin,  1  Bligh's  K  S. 

"  Smith   V.   Garland,   2    Mer.    123;  673. 

Johnson  >•.  Legard,  T.  &  R.  281.  "  Doe   v.    Rusham,    17   Q.   B.    723; 

'  Pulyerto.t  V.  Pulvertoft,  18  Yes.  84.  Lewis  v.  Rees,  3  K.  <fe  J.  132. 

«  Metcalfe  v.  Pulvertoft,  1  Y.   <k  B.  "  lb. 

180;  Sug.  V.  <fe  P.  721.  '"  Beavan  v.  Lord  Oxford,  6  D.  M,  A 

*  Daking  v.  Whimper,  26  Bcav.  568.  G,  507. 


*  Tate  T).  Tate,  1  Dev.  &  Bat.  Eq.  23 ;  Clapp  v.  Tinell,  1  Pick.  247. 

t  There  is  no  material  difference  between  a  judicial  sale  and  a  private 
sale.  Reynolds  v.  Yilas,  8  "Wis  471 ;  Latta  b.  Morrison,  1  Ired.  149;  contra^ 
Ridgway  v.  Underwood,  4  Wash.  139. 


FRAUD  UPOX  THIRD  PARTIES.  231 

its  face  to  be  volnntaiy,  evidence  is  admissible  to  prove  that 
it  was  made  for  valuable  consideration.^  In  the  case  of  deeds 
alleged  to  be  voluntary,  the  court  does  not  enter  into  the 
quantum  of  consideration ;  but  only  inquires  whether  the 
transaction  was  one  of  bargain  or  one  of  gift  merely.^  In  a 
case  where  an  agreement  was  entered  into  between  a  lady, 
entitled  in  fee  to  an  estate  subject  to  mortgages,  and  her 
nephew,  that  she  should  come  and  live  with  him,  and  that  he 
should  remove  into  a  larger  house,  and  he  covenanted  to 
indemnify  her  from  all  liability  in  respect  of  the  mortgages, 
and  fulfilled  his  own  part  of  the  agreement,  it  was  held  that 
the  settlement  was  not  voluntary,  the  covenant  to  indemnify, 
and  the  expenses  incurred  by  the  nephew  on  the  faith  of  the 


'Kelson    v.    Kelson,    ]0    Ha.    385;  »  Townend  v.  Toker,  L.  R.  1  Ch.  Ajip. 

Townend  v.  Toker,  L.  R.  1  Lh.  App.      4D9. 
459. 


A  puTcTiaser  from  an  executor  is  within  tlie  statute.  Clapp  ■».  Leather- 
bee,  18  Pick.  131. 

A  mortgagee  is  a  purchaser  for  a  valuable  consideration.  Lewis  v. 
Love,  3  B.  Mon.  345  ;  Lancaster  v.  Dolan,  1  Rawle,  231 ;  Freeman  i.  Lewis, 
5  Irecl.  91;  Potts  v.  Blackwell,  3  Jones'  Eq.  449;  s.  c  4  Jones'  Eq.  58; 
Ledgard  «.  Butler,  9  Paige,  132. 

A  deed  made  exclusively  with  the  design  to  defraud  creditors  can  not 
be  considered  as  having  been  made  with  the  design  to  defraud  purchasers. 
Foster  v.  Walton,  5  Watts,  378;  Shaw  v.  Levy,  17  S.  »&  R.  99 ;  Danglass  v. 
Dunlap,  10  Ohio,  162;  Sanger  v.  Eastwood,  19  Wend.  514;  Te.isdale  v. 
Atkinson,  3  Brevard,  48 ;  Woodman  v.  Bodfish,  25  Me.  317 ;  Fowler  v. 
Stoneum,  11  Tex.  478 ;  Moscley  v.  Moseley,  15  N.  T.  334 ;  Doolittle  v, 
Lyman,  44  N.  U.  608;  Stevens  v.  Morse,  247  N.  H.  532. 

If  there  is  any  fraud  in  a  voluntary  conveyance,  or  it  is  merely  color- 
able, it  can  never  be  set  up  against  a  subsequent  purchaser  for  a  valuable 
consideralion.  Clapp  r.  Leatheibee,  18  Pick.  131;  Ricker  v.  Ham,  14  Mass. 
137  ;  Kiuiball  v.  Hutchins,  3  Ct.  450  ;  Eddins  v.  Wilson,  1  Ala.  237  ;  Carter 
V.  Castleberry,  5  Ala.  377 ;  Fullenwider  v.  Roberts,  4  Dev.  &  Bat.  278 ; 
Walter  v.  CruUe,  8  B.  Mon.  11  ;  How  v.  Waysman,  12  Mo.  169. 


232  FRAUD  UPON  THIRD  PARTIES. 

settlement  being  nominally  sufficient  to  support  it  as  made  for 
value.^ 

Prenuptial  settlements,  and  postnuptial  settlements  in 
pursuance  of  prenuptial  articles,  or  on  receipt  of  an  additional 
portion,  &c.,  &c.,  are  settlements  for  valuable  consideration, 
and  are  therefore  good  against  subsequent  purchasers  or  prior 
voluntary  grantees,  as  the  case  may  be.^  *  So  also,  in  certain 
cases,  the  concurrence  of  a  stranger  may  deprive  a  postnuptial 
settlement  of  its  voluntary  character ;  ^  but  as  a  general  rule  a 
postnuptial  settlement  is  voluntary.^  The  marriage  considera- 
tions run  through  the  whole  settlement,  as  far  as  it  relates  to 
the  husband,  and  wife,  and  issue ;  but  does  not  extend  to 
remainders  to  collateral  relations,  so  as  to  support  them  against 
a  subsequent  sale  to  a  hondfide  purchaser.^  A  marriage  settle- 
ment so  far  as  it  is  made  in  favor  of  collaterals,  is  voluntary, 
and  therefore  fraudulent  and  void  as  against  subsequent  pur- 
chasers, though  made  honestly  and  openly  to  provide  for  the 
settler's  wife  and  children,®  or  his  mother  and  younger 
brothers  and  sisters,'  or  for  a  niece  and  adopted  daughter.^ 
Il^o  moral  consideration,  however  strong,  is  sufficient  to  sup- 
port a  settlement  against  a  purchaser ;  ^  but  if  the  remainders 
are  specifically  contracted  for,  and  brought  within  the  con- 
sideration,^"  or  if  the  limitation  in  the  settlement  so  interfere 
with  those  which  would  naturally  be  made  in  favor  of  the 
husband,  wife,  and  issue,  that  it  must  be  presumed  to  have 
been  agreed  upon  by  all  parties  as  part  of  the  marriage  con- 

1 

*  Townend  v.  Toker,  L.  R.  1  Ch.  App.  *  Chapman  v.  Emery,  Cowp.  278, 280. 
459.  '  Doe  v.  Manning,  9  East,  59. 

"  Su2:.V.  &P.  T18  ;  Dart's  V.  &  P.  576.  «  Smith  v.  Chen-ill,  L.  R.  4  Eq.  390, 

»  Dart's  V.  &  P.  576,  577.  •  But  see  Clarke  v.  Wright,  6  H.  <fe 

*  Sug.  V.  &  P.  715.  K  872,  j»e>-  Cockburn,  C.  J. 
^  Jol)nson  V.  Legard,  6  M.  &  S.  60;  "  Sug.  V.  &  P.  716. 

T.  &  R.  281 ;   Sug.  V.  &  P.  716. 


*  Yerplanck  v.  Sterry,  13  Johns.  536 ;  8.  c.  1  Jolms.  Ch.  360. 


FRAUD  UPON   THIRD  PARTIES.  233 

tract,  it  is  not  voluntaiy,  and  will  be  supported  against  a  sub- 
sequent purchaser.^ 

The  statute  27  Eliz.  c.  4,  further  makes  void  as  against 
subsequent  purchasers  for  money  or  other  good  consideration 
all  conveyances  made  with  any  clause,  provision,  article,  or 
condition  of  revocation,  determination  or  alteration  at  the 
grantor's  will  or  ])leasure,  whether  such  clause,  &c.,  &c.,  ex- 
tend to  the  whole  interest  actually  conveyed  or  only  partially 
affect  it.^ 

The  statute  27  Eliz.  c.  4,  does  not  apply  to  personal  chat- 

tels.3* 

A  purchaser  for  value  of  real  estate  cannot  come  into  the 
Court  of  Chancery  to  have  a  prior  voluntary  deed  void  under 
27  Eliz.  c.  5,  delivered  up  to  be  cancelled.  The  court,  in  such 
a  case,  leaves  both  parties  to  their  legal  rights  and  remedies.* 

NOTICE. 

Another  class  of  frauds  upon  third  parties  consists  of  cases 
where  a  man  takes  or  purchases  property  with  notice  of  the 

'  Clarke  v.  Wright,  6  H.  <fe  K  869,       on  this  subject  Sug.  V.  <feP.  721 ;  Darfs 
per  Blackburn   and  Willes,  JJ. ;  Dart's       V.  &  P.  584. 

V.  &  P.    578-581;  but  see  6  H.  &  N.  Mones   v.    Croucber,  1    Sim.  <fe  St. 

869,  per  Williams,  J.  315  ;  Bill  v.   Cureton,  2  M.  <fe  K  503; 

^  Burt  Real  Prop.  §.  224.  See  further       Barton  v.  Vanbeythuj'sen,  11  Ha.  126. 

*  De  Hoghton  v.  Mouey,  35  Beav.  98. 


*  Davis  V.  Bigler,  63  Perm.  242;  Teasdale  v.  Atkinson,  2  Brevard,  48; 
Bewail  V.  Gliddon,  1  Ala.  52 ;  Bolin  i).  Headley,  7  H.  &  J.  257 ;  Garrison 
V.  Rives,  3  Jones,  85 ;  Jones  v.  Hall,  5  Jones'  Eq.  26. 

Although  the  terms  of  the  act  apply  only  to  land,  yet,  being  declaratory 
of  the  common  law,  they  must  be  interpreted  as  defining  the  nature  and 
effect  of  fraudulent  conveyances,  generally,  in  its  letter,  as  enacting  the 
common  law  as  to  fraud  relating  to  land,  but  in  its  spirit  sanctioning  and 
sustaining  the  condemnation  passed  by  the  common  law  ui)on  all  frauds. 
Gibson  v.  Love,  4  Fla.  217 ;  Footman  v.  Pendergrass,  3  Rich.  Eq.  33. 

If  tbe  vendee  allows  personal  property  to  remiiu  in  the  possession  of 
16 


234  PRAUD  UPON  THIRD  PARTIES. 

legal  or  equitable  title  of  other  persons  to  the  same  property, 
and  seeks  to  defeat  their  just  rights  by  appropriating  the 
property  to  his  own  use.  In  equity  notice  affects  the  con- 
science. A  man  M'ho  takes  or  purchases  property  cannot 
protect  himself  against  claims,  of  which  he  has  notice,  to  the 
same  property.  If  a  man  acquiring  property  has  at  the  time 
of  the  acquisition  notice  of  an  equity  binding  the  person  from 
whom  he  takes,  in  respect  of  the  property,  he  is  bound  to  the 
same  extent  and  in  the  same  manner  by  the  same  equity.''  *  In 
accordance  with  this  principle  the  purchaser  of  property  from 
a  trustee,  with  notice  of  the  trust,  is  himself  a  trustee  for  the 
same  property ;  ^  the  purchaser  of  property  which  the  vendor 
has  contracted  to  sell,  is,  if  he  has  notice  of  the  contract, 
bound  by  the  same  equity  by  which  the  vendor  whom  he 
represents  was  bound ;  ^  the  purchaser  of  property  with  notice 
of  an  equitable  lien  for  unpaid  purchase-money,*  or  of  an 
equitable  mortgage  by  deposit  of  deeds,^  is  bound  by  the 
equity  to  which  his  vendor  was  liable ;  and  the  purchaser  of 

'  Taylor  v.   Stibbert,  2  Ves.  Jr.  437 ;  Roland,  1  Dr.  &  Wal.  37.     See  Dowell 

Dunbar  v.  Tredennick,  2  Ba.  &  Be.  310.  v.  Dew,  1  Y.  &  C.  C.  C.  345. 

*  Saunders  v.  Dehew,  2  Vern.   271;  ^  Macreth  v.   Symons,   15  Ves.  350; 

Allen  V.  Knight,  5  Ha.  272;   11  Jur.  Rice  y.  Uice,  2  Drew.  73. 
527;  Carter  v.   Carter,  3  K.  &  J.  617;  '  Plumb  v.  Fluitt,  2  Anst.  432;  Hiern 

Cory  V.  Eyre,  1  D.  J.  &  S.  149.  v.  Mill,  13  Ves.  114 ;  Dryden  v.  Frost, 

» Taylor  v.  Stibbert,  2  Ves.  Jur.  438;  3  M.  <fe  C.  670 ;  Leigh  v.  Lloyd,  2  D.  J, 

Scott  V.  Dunbar,  1  MoU.  442 ;  Field  v.  &  S.  330. 


tlie  vendor,  and  the  vendor  sells  it  again  to  a  bon  I  fide  iiurchr.ser  without 
notice,  he  can  not  recover  it.  Shaw  v.  Levy,  17  S.  «&  R.  99 ;  Davis  v. 
Bigler,  62  Penn.  242;  Fleming  v.  Townsend,  6  Geo.  103;  Hudiial  v. 
Wilder,  4  McCord,  295 ;  Harper  -o.  Scott,  12  Geo.  125. 

To  sustain  a  voluntary  conveyance  of  personal  property  against  a  sub 
sequent  purchaser  for  value,  the  notice  must  be  actual,  and  not  by  recrrl. 
Fleming  v.  Townsend,  C  Geo.  103 :  Fowler  v.  Waldrip,  10  Geo.  350;  Har- 
per r.  Scott,  12  Geo.  125. 

*  Caldwell  v.  C.arrjigton,  9  Pet.  86;  Mas^y  r.  Mcllvaiu,  2  Hill's  Ch. 
421;  Allen  r.  Sanders,  2  Bibb,  94;  Yodcr  v.  Swope,  3  Bibb,  204;  Lang- 
dou  t.  Woodfield,  2  B.  Mon.  105  ;  Edwards  v.  Morris,  2  A.  K.  Marsh.  65; 
Moreland  r.  LeMaster,  4  Blackf.  383. 


FRAUD  UPON  THIRD  PARTIES.  235 

land  whicli  the  vendor  has  covenanted  to  use  in  a  specified 
manner  is,  if  he  has  notice  of  the  covenant,  bound  by  its 
terms.* 

It  must,  however,  be  observed  that  the  notice  required  by 
the  doctrine  is  notice  of  an  equity,  which,  if  clothed  with  legal 
completeness,  would  be  indefeasible,  and  not  merely  notice  of 
a  defeasible  legal  interest,  or  of  an  interest  which,  if  legal, 
would  be  defeasible.  The  principle  is,  that  an  interest  which, 
if  legal,  would  be  indefeasible  shall  not  be  defeated  by  reason 
of  its  equitable  character  by  a  party  who  has  notice  of  it ;  if, 
being  legal,  it  may  be  defeated  at  law,  there  is  no  equity  to 
support  it;^  A  voluntary  conveyance,  for  instance,  has  no 
equity  to  support  it  against  a  subsequent  alienation  for  value, 
even  though  with  notice,  for  the  right  of  the  volunteer  is 
defeasible  by  statute.^  A  feme  covert  or  an  infant  is  just  as 
much  bound  by  notice  as  an  adult.'* 

Notice  is  either  actual  or  constructive ;  but  there  is  no 
difference  between  them  in  its  consequences.'  Actual  notice 
consists  in  express  information  of  a  fact,  and  brings  home 
knowledge  directly  to  a  party.  Actual  notice  must,  in  order 
to  be  binding,  at  least  when  it  depends  on  oral  communication 
only,  proceed  from  some  one  interested  in  the  property,®  and 
should  be  in  the  same  transaction.  Mere  vague  rumors,  or 
the  assertions  of  strangers,  will  not  fix  a  party  with  actual 
notice.'    Actual  notice   embraces   all   degrees  and  grades  of 

'  Tulk  V.  Moxbay,  2  Ph.  7Y4 ;  Coles  v.  *  Sheldon  v.  Cox,  2  Eden,  22 1 ;  Pros- 

Sims,   5  D.  M.  &  G.  1;    De  Mattos  v.  ser  v.   Kice,  28  Beav.  68;  Wormald  y 

Gibson,  4  D.  <fe  J.  282.  Maitland,  35  L.  J.  Cli.  69. 

*  Ad.'ims'  Doct.  Kquity,  152.  °  Earnhardt  v.  Greenshields,  9  Moo. 
'PulvcTioltt;.  Pulvertoft,  18  Ves.  92;  P.  C.  C.  18.     See  Greeushule  v.  Dare, 

Buckle  V.  iMitchell,  ih.  100.  20  Beav.  284 ;    Jay  v.   Richardson,  30 

*  Jones  V.   Kearney,  1  Dr.  &  War.       Beav.  563. 

166,  ^  Sug.  V.  <fe  P.  755,     See  Greenslade 


♦Flagg  V.  Mann,  2  Sumner,  484;  Eply  v,  Witherow,  7  Watts,  163; 
Jaraea  v.  Drake,  3  Sneed.  340 ;  Black  v.  Thornton,  31  Geo.  641. 


23G  FRAUD  UPON  THIED  PARTIES. 

evidence,  from  the  most  direct  and  positive  proof  to  tlie 
slightest  evidence  from  which  a  jury  would  be  warranted  in 
inferring  notice.  It  is  a  mere  question  of  fact,  and  is  open  to 
every  species  of  legitimate  evidence  which  may  tend  to 
strengthen  or  impair  the  conclusion.^* 

Whatever  is  notice  enough  to  excite  the  attention  of  a 
man  of  ordinary  prudence  and  call  for  further  inquiry  is,  in 
equity,  notice  of  all  facts  to  the  knowledge  of  which  an  inquiry 
suggested  by  such  notice,  and  prosecuted  with  due  and  reason- 
able diligence,  would  have  led.^  f  Notice  of  this  sort  is  called 
constructive  notice.  Constructive  notice,  as  distinguished 
from  actual  notice,  is  a  legal  inference  from  established  facts, 
and,  like  other  legal  presumptions,  does  not  admit  of  dispute.^ 
If  a  man  has  actual  notice  of  circumstances  sufficient  to  put  a 
man  of  ordinary  prudence  on  inquiry  as  to  a  particular  point, 
the  knowledge  which  he  might,  by  the  exercise  of  reasonable 
diligence,  have  obtained  will  be  imputed  to  him  by  a  court  of 


V.  Dare,  20  Beav.  284 ;  Central  Railway  v.   Homan,  4  H.   L.    997 ;    Dawson  v. 

Co.  of  Venezuelan  Kisch,  2  L.  R.  App.  Prince,  2D.  <fe  J.  41 ;   Perry  v.  Holl,  2 

Ca.  112;  Hamilton  v.  Royse,  2  Sch.  &  D.  F.  &  J.  38  ;    Broadbent  v.  Barlow,  3 

Lef.  315.  D.  F.  &  J.  570;    Dettmar  v.  Metropoli- 

'  Williamson     v.    Brown,    1    Smith  tan   and  Provincial  Bank,  1  H.  <fe  M. 

Amer.),  359,  yjer  Selden,  J.    See  Bour-  641. 
sot  V.  t?ava2;e,  L.  R.  2  Eq.  134.  ^  Williamson     v.    Brown,    1    Smith 

^  Maitland  v.  Backhouse,  17  L.  J.  Ch.  (Amer.)  So9, per  Selden,  J.;  Birdsall  v. 

121;    Espey    v.   Lake,    10    Ha.    260;  Russell,  2  Tilf.  (Amer.)  249. 
Mangles  v.  Dixon,  3  H.  L.  702 ;  Owen 


There  is  no  rule  of  law  which  makes  a  statement  of  a  fact  in  a  news- 
paper either  actual  or  constructive  notice.  It  is  not  sufficient  to  show 
that  a  person  was  in  the  habit  of  reading  the  paper.  It  must  be  proved 
that  he  read  it.     Lincoln  r.  Wright,  23  Perin.  76. 

*  Williamson  v.  Brown,  15  N.  Y.  354. 

t  Galatian  v.  Erwin,  1  Hopk.  48  ;  Koberts  v.  Anderson,  3  Johns.  Ch. 
371  ;  Pitney  v.  Leonard,  1  Paige,  461 ;  Blaisdell  v.  Stevens,  16  Vt.  173  ; 
Stafford  v.  Ballou,  17  Vt.  329;  Peters  v.  Goodrich,  3  Ct.  146;  Booth  v. 
Baruum,  9  Ct.  286  ;  Bingaman  v.  Hyatt,  1  Smed.  &  Mar.  Ch.  437. 


FRAUD  UPON  THIRD  PARTIES.  237 

equi-ty.  The  presumption  of  the  existence  of  knowledge  is  so 
strong  that  it  cannot  be  allowed  to  be  rebutted.^  ^ 

There  is,  however,  no  constructive  notice  unless  it  clearly 
appear  that  the  inquiry  suggested  by  the  facts  known  or  dis- 
covered would,  if  fairly  pursued,  result  in  the  discovery. 
There  must  appear  to  be  in  the  nature  of  the  case  such  a  con- 
nection between  the  fact  discovered  and  the  further  facts  to  be 
discovered  that  the  former  may  be  said  to  furnish  a  clue — a 
reasonable  and  natural  clue — to  the  latter.'^ 

The  doctrine  of  constructive  notice  applies  with  peculiar 
force  where  the  court  is  satisfied  that  a  man  has  designedly  ab- 
stained from  inquiry  for  the  very  purpose  of  avoiding  knowl- 
edge, Wilful  ignorance  is  not  to  be  distinguished,  in  its 
equitable  consequences,  from  actual  knowledge.^    If,  however, 

'  Plumb  V.  Flintt,  2  Anst.  438,  per  C.  *  Birdsall  v.  Russell,  2  Tiff.   (Amer.) 

B.  Eyre  ;    Hewitt  v.  Loosemore,  9   Ha.  250. 

455.  per  Turner,  L.  J. ;    Espiti   v.  Pem-  '  Jones    v.    Smith,   1  Ha.  55,    1  Ph. 

berton,  3  D.  <k  J.  554,  joer  Lord  Chelms-  244;    Oweu  v.  Hoinan,   4  H.  L.  997, 

ford.  1035. 


*  Davis  V.  Bigler,  63  Penn.  242  ;  Harris  v.  Carter,  3  Stew  233;  Hinda 
«.  Vattier,  1  McLean,  110;  Pearson  v.  Daniel,  2  Dev.  &  Bat.  Eq.  360; 
Lasselle  v.  Burnett,  1  Blackf.  loO ;  Cotton  v.  Hart,  1  A.  K.  Marsh.  56. 

The  principle  of  the  doctrine  of  constructive  notice  is,  that  where  a 
person  is  about  to  perform  an  act  by  which  he  has  reason  to  believe  that 
the  rights  of  a  third  party  may  be  affected,  an  inquiry  into  the  fact  is  a 
moral  duty  and  diligence  an  act  of  justice.  Hence  he  proceeds  at  his 
peril  when  he  omits  to  inquire,  and  is  then  chargeable  with  a  knowledge 
of  all  the  facts  which,  by  inquiry,  he  might  have  ascertained.  This 
neo-lcct  is  followed  by  all  the  consequences  of  bad  f\iith,  and  he  loses  the 
protection  to  which  his  ignorance,  had  it  not  proceeded  from  neglect, 
would  have  entitled  him.  The  rule  is  the  same  in  courts  of  law  or  equity, 
and  in  both  the  term  notice  must  receive  the  same  interpretation.  It  must 
either  be  limited  to  strict  knowledge  which  is  derived  from  positive  infor- 
mation, or  must  be  extended  to  that  which  the  law  imputes  to  him  who, 
having  reason  to  believe  or  suspect,  neglects  to  inquire.  Pringle  v.  Philips, 
5  Sandf.  157. 

The  presumption  of  notice  which  arises  from  proof  of  that  degree  of 
knowledge  which  will  put  a  party  upon  inquiry,  is  not  a  presumption  of 


238  PEAUD  UrON   THIRD  PARTIES. 

a  man  abstain  from  inquiry  where  inquiry  ought  to  have  been 
made,  it  is  immaterial  that  the  neglect  to  make  inquiry  may 
not  have  proceeded  from  any  wish  to  avoid  knowledge.  It 
may  be  that  inquiry  might  not  have  brought  out  the  truth  ; 
but  a  man  who  abstains  from  inquiry  where  inquiry  ought  to 
have  been  made,  cannot  he  heard  to  say  so  and  to  rely  on  his 
ignorance.**  In  the  absence  of  inquiry,  where  inquiry  ought 
to  have  been  made,  the  court  is  bound  to  assume  that  the  per- 
son from  whom  inquiry  should  have  been  made  would  liave 
done  what  it  was  his  duty  to  do.^  A  man  cannot  escape  being 
fixed  with  constructive  notice  by  not  using  the  ordinary  cau- 
tion of  employing  a  solicitor  to  protect  his  interest.  If  a  man 
employs  no  solicitor  he  will  be  held  to  have  exactly  the  same 
knowledge,  and  will  be  liable  to  the  same  extent  as  if  he  had 
employed  a  solicitor.^ 

If  mere  want  of  caution  as  distinguished  from  gross  and 
culpable  negligence  is  all  that  can  be  imputed  to  a  man,  the 
doctrine  of  constructive  notice  will  not  apply.*  The  doctrine 
does  not  go  to  the  extent  of  fixing  a  man  with  such  knowledge 
as  he  might  by  the  exercise  of  extreme  and  exti-aordinary  cau- 
tion have  obtained.  A  man  is  in  no  case  bound  to  use  every 
exertion  to  obtain  information.      The  want,  indeed,  of  that 


'  Jones  V.   Smith,  1  Ha.    43  ;  West  v.  *  Kennedy  v.  Green,  3  M.  &  K.  699; 

Reid,    2   Ha.    249  ;   Maitlaiid  v.   Back-  Harrison  v.  Guest,  6  D.  M.  <fe  G.  428  8 

house,  n  L.  J.  Ch.    12]  ;  Jones  v.  Wil-  H.  L.  481. 

liams,  24  Beav.  47  ;  Mayor  of  Berwick  '  Jones  v.  Smith,  1  Ha.  55  ;    West  v 

V.  Murray,  7  D.  M.  &  G.   497  ;  General  Reid,  2  Ha.  249,  259;  Waret;.  Egmonti 

Steam    Navigatoo  Co.  v.   Rolt,  6  C.  B.  4  D.  M.  &  G.  460;    Wilson  v.  Hart   2 

N.  S.  550.     See  Farrant  v.  Blauchford,  H.  <k  M.  551,     See  Dodds  v.  Hills  'ib 

1  D,  J.  &  S.  107.  426, 

"  Knight  V.  Boyer,  2  D,  <t  J.  450. 


law  but  of  fact,  and  may  be  rebutted  by  proof  of  diligent  inquiry,  Wil- 
liumson  «.  Brown,  15  N.  T.  854;  Massie  v.  Greeuhow,  2  Pat.  »&  Heath 
255;  Hoyt  v.  Sheldon,  3  Bosw.  2G7, 

*  Oliver  v.  Piatt,  3  How.  333 ;    Jenkins  v.  Eldridge,  3  Story,  131  •    Pit. 
ney  v.  Leonard,  181, 


FEAUD  UPON  THIRD  PARTIES.  239 

caution  wliich  a  wary  and  prudent  man  miglit,  and  probably 
would  have  adopted,  is  not  sucli  negligence  as  will  affix  a  party 
with  notice  of  what  he  might  have  ascertained.^  Tlie  means 
of  knowledge  by  which  a  man  will  be  affected  with  notice 
must  be  means  of  knowledge  which  are  practically  within 
reach,  and  of  which  a  reasonable  man  or  a  man  of  ordinary 
prudence  might  have  been  expected  to  avail  himself.^  Mere 
suspicion  or  vague  and  indeterminate  rumor  is  not  sufficient  to 
put  a  man  upon  inquiry.^*  There  must  be  a  reasonable  cer- 
tainty as  to  time,  place,  circumstances,  or  persons.*  The  ques- 
tion is  not  whether  a  man  had  the  means  of  obtaining,  and 
might  by  prudent  caution  have  obtained,  the  knowledge  in 
question,  but  whether  the  not  obtaining  it  was  an  act  of  gross 
and  culpable  negligence."  f     I^egligence  supposes  a  disregard 

'  ITill  V.  Simpson,  V  Ves.  169  ;  Whit-  Hine  v.  Dodd,  2  Atb.  2*75.     See  Central 

bread  v.  Jordan,  1  Y.  &  C.  317;    Jones  Railway  Co.  of  Venezuela  v.  Kisch,  2 

V.  Smith,   1  Ph.   257;    West  v.  Reid,  2  L.  R.  App.  Ca.  112. 
Ha.  250  ;    Ware  v.  Egmont,  4  D.  M.  &  *  Story's  Eq.  Jur.  400;  General  Steam 

G.  4G() ;  Stephenson  v.  Royse,  5  Ir.  Ch.  Navigation  Co.   v.   Rolt,   6  C.  B.  N.  S. 

401;  He  I\ati(jiial  Life  Assurance  and  550.  See  Blacklow  i'.  Laws,  2  Ha.  48. 
Investment   Association,  31   L.  J.  Ch.  *  Ware  i'.  Ei^niont,  4  D.  M.  A  O.  460 ; 

828.     See  Dawson  v.  Prince,  2  D.  <fe  J.  Montefiore  v.  Browne,  7  IL  L.  241.    See 

41;  Greenslade  v  Dare,  20  Beav.  284;  Borell  v.  Dann,  2  Ha.  446;    Greenslade 

Dodds  V.  Hills,  2  H.  &  M.  424.  v.   Dare,   20   Beav.    284 ;    Tildesley  v. 

^  Jackson  v.  Rowe,  2  Sim.  <fe  St.  472  ;  Lodge,  3  Sm.  &  G.  543  ;    Re  National 

Broadbent  v.  Barlow,  3  D.  F.  <t  J.  570.  Life  Assurance  and  Investment  Asso- 

'  Whiltield  v.  Fausset,   1  Ves.   392;  elation,  31  L.  J.  Ch.  828. 


*  "Wilson  V.  McCullough,  23  Penn.  440  ;  Lament  i\  Stimson,  5  Wis.  443; 
Colquitt  V.  Thomas,  8  Geo.  258. 

Circumstances,  suiBcient  to  raise  suspicion,  are  constructive  notice. 
Bunting  V.  Kicks,  2  Dev.  &  Bat.  Eq.  130. 

A  rumor  is  notice  if  it  turns  out  to  be  correct,  for  it  is  sufficient  to  put 
the  party  upon  inquiry.     Benzein  v.  Lenoir,  1  Dcv.  Eq.  225. 

Although  the  party  whose  interest  would  prompt  him  to  misrepre- 
sent, asserts  that  an  incumbrance  has  been  paid  off  or  discharged,  wilhout 
furnishing  any  proof  whatever,  or  referring  to  any  circumstances  in  sup- 
port of  his  assertion,  the  purchaser  who  fails  to  make  further  inquiry  will 
nevertheless  be  guilty  of  such  a  degree  of  negligence  that  he  will  be  con- 
Bidercd  as  having  notice.     Rice  v.  McDonald,  6  Md.  403. 

t  Wi'son  v.  Wall.  6  Wall.  83 ;  Woodworth  v.  Paige,  5  Ohio  St.  R.  TO  ; 
Briggs  V.  Taylor,  28  Vt  180. 


240  FRAUD  UPON  THIRD  PARTIES. 

of  some  fact  known  to  a  man  wliicli  at  least  indicates  the 
existence  of  that  fact,  notice  of  which  the  conrt  imputes 
to  him.^  There  is  often  much  difficulty  in  drawing  the  line 
"between  the  degree  of  negligence,  wliich  shall  be  gross  negli- 
gence, and  that  mere  want  of  caution  which,  in  the  absence  of 
fraud,  does  not  amount  to  negligence  in  the  legal  sense  of  the 
term.  ]S[o  general  rule  can  be  laid  down  which  shall  govern 
all  cases.     Each  case  must  depend  on  its  own  circumstances.^  * 

It  a  man  has  actual  notice  that  the  property  in  question  is 
in  fact  charged,  encumbered,  or  in  some  way  affected,  or  has 
actual  notice  of  facts  raising  a  presumption  that  it  is  so,  he  is 
bound  in  equity  with  constructive  notice  of  all  facts  and  instru- 
ments, to  a  knowledge  of  which  he  would  have  been  led  by  an 
inquiry  after  the  charge,  incumbrance,  or  other  circumstance 
affecting  the  property  of  which  he  had  actual  notice.^  \ 

"Where,  accordingly,  a  man  has  notice,  whether  by  recital, 
description  of  parties,  or  otherwise,  of  an  instrument,  which 
from  its  nature  must  form,  directly  or  presumptively,  a  link  in 
the  title,  or  is  told  at  the  time  that  it  does  so,  he  will  be  pre- 
Bumed  to  have  examined  it,  and  therefore  to  have  notice  of  all 

» West  V.  Reid,  2  Ila.  249,  259.     See  Grant  v.  Campbell,  6  Dow,  239;  Nee- 

Greeuslade'j;.  Dare,  20  Beav.  284.  som  v.  Clarkson,  2  Ha.  163  ;    AVcst.  v. 

■■'  Jones  V.  Smith,   1  Ha.  55;  West  v.  Reid,  ib.  249;    Att.-Gen.  v.  Flint,  4  Ha. 

Reid  2  Ha.  249;   Ware  f.  Egmont,  4  D.  147;    Frail  w.  Ellis,   16  Beav.  350;    He 

M.  &  G.  460;  Colyer  v.  Finch,  5  H.  L.  Bright's  Trusts,  21  Beav.  430;  Coles  v. 

905  •  Perry-Herrick  v.  Attwood,  2  D.  <fe  Sims,  5  D.  M.  &  Cr.  1 ;    Welchman  v. 

J.  21.     See  as  to  negligence,  SMZ-ra,  pp.  Coventry  Union  Bank,  8  W.   R.   729; 

140  141.  ''^y  ''•  iiichardson,  30  Beav.  563 ;  Cox 

*'l  llsi.  55,  />«»*  digram,  V.-C;  7  H.  v.  Coventon,  31   Beav.   388;    Locke  «. 

L     262    joer   Lord   Chelmsford.      See  Prescott,  32  Beav.  261 ;  Leigh  v.  Lloyd, 

Dowaes   v.  Power,   2  Ba.   &  Be.  493 ;  2  D,  J.  <fe  S.  330. 


*  Lowry  r.  Brown,  1  Cold.  456  ;  Doyle  v.  Teas,  4  Scam.  203. 

t  Skcel  V.  Spraker,  8  Paige,  182;  Roberts  r.  Stanton,  2  Munf.  129; 
Rowan  ®.  Adams,  1  Smed.  &  :Mar.  Ch.  45;  Poulet  v.  Johnson,  25  Geo.  403; 
Mavfield  v.  Averitt,  11  Tex.  140 ;  Currens  v.  Hart,  Hardin,  37. 

'a  defective  deed  is  notice  of  all  fraud  connected  witli  its  executioa 
Smith  «.  Shane,  1  McLean,  22. 


FKAUD  UPOX  THIRD  PARTIES.  211 

instniments  or  facts  to  which  an  examiuation  would  have  led 
him.^ 

A  purchaser,  accordingly,  who  has  actual  notice  of  a  deed, 
is  bound  by  all  its  contents,'^  *  and  has  notice  of  all  equities 
springing  out  of  the  deed,^  f  and  of  all  instruments  to  which 
an  examination  of  the  deed  would  have  led  him;*+  even 
although  such  instruments  are  not  actually  recited,  but  there 
is  only  a  recital  that  the  property  is  subject  to  limitations 
which,  in  fact,  correspond  with  the  limitations  thereby  created.' 
If  the  deed  under  which  he  takes  title  be  a  settlement,  he 
takes  with  notice  of  all  equities  springing   out  of  the  settle- 

'  Surman  v.  Barlow,    2  Eden,  lf)7;  Coventon,   31   Bcav.   378;  Clements  v. 

SLelduii   V.  Cox,  ib.    224;   Uamiltm  w.  Welles,  L.  R.  1  Eq.  200. 

Rovsc,   2  Sch.    &  Lef.   326 ;  Taylor  v.  ^  Tanner  v  Florence,   1  Ch.  Ca.  259  ; 

Baiier,  5  Pri.   3()6  ;  Jones  v.  Smith,    1  Taylor  v.  t^tibbert,  2  Ves.  Jr.  437  ;  Nee- 

Ph.,  253  ;  West  v.  Keid,  2  Ila.  24i>.    See  som  v.  Clarks m,  2  lla.  173. 

Moor  «;.  Bennett,  2  Ch.  Ca.  240;  Bath  'Hamilton   v.  Royse,  2   Sch.  «fc  Lef. 

and   Montague's  Case,  3  <  h.  Ca.    110;  326;  but  see  LI.  A  (J.  264, /)er  Lord  St. 

Mertiiis  v.  Jolliffe,  Arab.   311 ;  Plumb  Leonards,  Sug.  V.  <fe  P.  777. 

t>.    Flintt,    2    Anst.    432  ;    I'ahner   v.  *  Coppin  ».  Feruyhough,  2  Bro.  C.  C. 

Wheeler,    2   Ba.    &  Be.    31;    Eyre   v.  291;  Bisco  ?;.  Earl   of  Banbmy,    1  Ch. 

D<Jphin.  »6.  290  ;  Malpns  u.  Acklaiid,  3  Ca.    287,    291;  Tanner  y.  Florence,   ib. 

Russ.  273;  Davis  v.  Thomas,  2  Y.  &  C.  259,  260;  Davies  v.  Thomas,  2  Y,  &  G. 

234 ;  Roddy  v.  Williams,   3   J.  &  L.  1  ;  234. 

Steadm:ui  v.  Poule,    16   L.  J.  Ch.   349;  ^  Necsom  v.  Clarkson,  2  lla.  163. 
Hope  «.  Liddell,  21  Bcav.  183;  Cox  v. 


*  Wormley  v.  Wormley,  8  Wheat.  421  ;  Johnston  v.  Gwathmey,  4  Litt 
317  ;  Che  ,v  v.  Calvert,  Walker,  54  ;  Oliver  v.  Piatt,  3  How.  333  ;  Neale  v. 
Haythrop,  3  Bland,  551  ;  Christmas  v.  Mitchell,  3  Ired.  Eq.  535;  Mason  v. 
Fame,  Walker's  Ch.  453. 

t  Ilackwilh  r.  Daws  n,  1  Minn.  235  ;  Rutter  v.  Barr,  4  Ohio,  44C ;  Van 
Dorn  r.  Robinson,  1  Green,  256 ;  Gordon  i\  Sizer,  39  ]\Ii^s.  805  ;  Griffith  v. 
Griffith,  1  Hoff.  Ch.  153  ;  Rogers  v.  Jones,  8  K  H.  2G4. 

t  Chew  V.  Caloitt,  1  Walk.  54;  Neale  v.  Haythrop,  3  Bland,  551  ;  Kerr 
«.  Kitchen,  17  Pcnn.  433 ;  Johnson  r.  Thweatt,  18  Ala.  741 ;  Wailes  v. 
Cooper,  24  Miss.  208  ;  McRimmcrs  r.  Martin,  14  Tex.  318. 

A  purchaser  is  bound  to  take  notice  of  qualifications  in  the  power  of 
attorney  of  an  agent  from  whom  he  purchases.  Morris  v.  Terrell,  2  Rand. 
6  ;  Graves  v.  Graves,  1  A  K.  Marsh.  165. 

The  doctrine  of  constructive  notice  has  no  reference  to  controversies 
between  vendor  and  vendee  in  relation  to  their  own  rights.  Champlin  v. 
Laytin.  G  Paige,  18!). 


242  FEAUD  uroN  third  parties. 

ment.^  ISTotice  of  a  postnuptial,  and  apparently  volnntaiy, 
settlement  agreement,  is  notice  of  tlie  antenuptial  settlement 
on  whicli  it  is  founded.''  So  also  notice  of  an  equitable  claim, 
as  affecting  an  unspecified  portion  of  tlie  property,  is  notice  of 
the  claim  as  in  fact  atfecting  the  entirety.^  If  the  deed  under 
which  he  takes  title  shows  that  there  are  incumbrances  affect- 
ing the  property  to  which  the  deed  relates,  he  takes  with 
notice  of  all  such  incumbrances.*  In  Peto  v.  Hammond,^  the 
purchaser  of  land  from  the  allottees  of  a  building  society,  who 
had  not  inquired  for  the  conveyance  of  the  land  to  the  trustees 
of  the  society,  was  held  bound  not  only  by  the  notice  of  the 
deed,  but  also  by  what  would  have  certainly  been  told  him,  if 
lie  had  inquired  for  the  deed,  namely,  that  the  deed  had  been 
retained  by  the  party  who  had  sold  the  land  to  the  trustees,  as 
an  equitable  mortgage,  with  a  covenant  from  the  trustees  to 
convey  the  legal  estate  to  him,  if  required.  So  also  if  a  man 
purchases  from  a  seller  whose  conveyance  was  "  subject  to  all 
the  mortgages  and  charges  affecting  the  same,"  he  will  be 
bound  by  a  prior  deposit  of  the  deeds  relating  to  a  portion  of 
the  estate  of  which  he  had  not  notice,  although  there  were 
other  charges  of  which  he  was  informed,  which  satisfied  the 
words,  "mortgages  and  charges."®  A  prospectus,  however, 
of  a  company,  mentioning  an  act  of  Parliament,  in  which  act 
a  deed  of  settlement  is  recited,  is  not  of  itself  sufiicient  to  fix 
any  person  reading  the  prospectus  with  constructive  notice  of 
the  contents  of  the  deed.  To  hold  that  he  was  would  be 
carrying  the  doctrine  of  constructive  notice  too  far.' 

So  also  notice  of  a  lease  is  notice  of  all  its  contents.^    If  a 
purchaser  has  notice  that  property  is  held  under  a  lease,  he 


32f) 


•  Hamilton  v.  Royse,  2  Sch.  &  Lef.  *  30  Beav.  495 


*  Jones  V.  Williams,  24  Beav.  47. 


Ferrars  v  Chorry,  2  Vern.  384.  ""  Re  National  Assurance  Association, 

*  Att.-Gen.'?;.  Flint,  4  Ila.  147.  10  W.  H.  548. 

*  Moiitetiore  v.  Browne,  7  H.  L.  241  ;  "  Hall  v.  Sniitli,  14  Ves.  420  ;  Walter 
but  see  Sug.  V.  &  P.  777.  v.  Mauude,   1  J.  <fe  W.   181 ;  ISmith  v. 


FKAUD  UPON  THIRD  PARTIES.  243 

cannot  object  that  he  liad  no  notice  of  any  particidar  covenant 
therein  contained.^  The  omission  on  the  part  of  the  vendor 
to  state  unusual  covenants  in  the  particulars  of  sale,  does  not 
affect  the  title ;  ^  nor  is  it  a  misrepresentation,  although  tlie 
value  of  the  premises  may  be  lessened  by  such  covenants.^  In 
a  case  where  the  conditions  of  sale  were  silent  as  to  the  nature 
of  the  covenants,  and  required  that  the  purcliaser  should 
covenant  with  the  vendor  for  the  performance  of  the  covenants 
and  conditions  in  the  lease,  a  covenant  in  the  lease  against 
carrying  on  certain  specified  trades,  "  or  any  otlier  noisome  or 
offensive  trade,"  was  held  to  be  no  objection  to  the  title.*  So 
also  a  clause  against  alienation  without  the  lessor's  consent 
was  held  to  be  no  objection  in  the  lease  of  a  house,  at  least  in 
or  near  London.' 

A  man  who  wishes  to  protect  himself  against  unusual  or 
particular  covenants,  should,  before  purchasing,  inquire  into 
the  covenants  and  stipulations  of  the  original  lease,  so  as  to 
know  precisely  the  terms  on  which  the  property  is  held.*  If 
there  be  no  misrepresentation  by  the  vendor,  the  purcliaser  is 
bound  by  the  contents  of  the  lease;'  but  if  there  be  mis- 
representation, so  that  the  acuteness  and  industry  of  the  pur- 
chaser is  set  to  sleep,  and  he  is  induced  to  believe  the  contrary 
of  what  is  the  real  state  of  the  case,  the  vendor  is  in  such  case 
bound  by  the  misrepresentation.^  If,  for  instance,  the  terms 
of  a  particular  covenant  turn  out  to  be  of  a  much  more 
stringent  description  than  they  were  represented  to  be,  there 
is  fraud.® 


Capron,  7  ITa.  191;  Dawes  v.  Betts,  12  *  Grosvenor  v.  Green,   28  L.  J.  Ch. 

Jur.  70'.) ;  Lewis  v.  Hond,  18  Beav.  85;  173. 

Parker  v.  Whyte,  1  II.  &  M.  167  ;  Clem-  ■*  Strangways  v.  Bishop,  29  L.  T.  120. 

ents  V.  Welles,  L.  R.  1  Eq.  200  ;  but  see  »  Pope  t;  Garland,  4  Y.   &   C.   394; 

Martin  v.  Cotter,  3  J.  tfc  L.  506,  jotr  Lord  Martin  v.  Cotter,  3  J.  <fe  L.  506  ;  CuUen 

St.  Leonards.  v.  O'Meara,  L.  K.  Ir.  2  C.  L.  063. 

'  Jfi-  '  Pope  V.  Garland,  4  Y.  cfe  C.  394 ; 

"  Pope  V.  Garland,  4  Y.  <feC.  394.  Spunncr  v.  Walsh,  10  Ir.  Eq.  400. 

'  Spuiiiiur  V.  Walsh,   10  Ir.  Eq.  386,  "  I'ope  v.  Garland,  4  Y.  A  C.  391. 

11  Ir.  Eq.  598.  "  Flight  v.  Booth,  1  Bing.  N.  C.  377; 


244  FEAUD  VTO^  THIRD  P.AJITIES. 

The  rule  tliat  notice  of  a  lease  is  notice  of  its  contents 
applies  to  tlie  case  of  sales  under  a  decree,  as  well  as  to  the 
case  of  sales  out  of  court.^ 

Thougli  notice  of  a  lease  is  notice  of  its  contents,  tlie  court 
may,  on  the  application  for  specific  performance,  decline  to 
grant  specific  performance  of  a  lease  containing  covenants  of 
an  unusual  nature,  if  the  person  against  whom  the  relief  is 
sought  had  no  reasonable  means  of  inspecting  the  original 
lease,  or  knowing  its  contents.''  If,  however,  he  has  had 
reasonable  means  of  inspecting  the  lease,  specific  performance 
will  be  decreed,^  although  he  may  have  intended  to  apply  the 
property  to  a  purpose  which,  as  it  turned  out,  was  prohibited.* 
It  is  immaterial,  in  such  case,  whether  or  not  the  vendor  knew 
the  purchaser's  intention.'' 

So,  also,  and  upon  the  same  principle,  where  a  man  is  of 
rio-ht  in  possession  of  corporeal  hereditaments,  he  is  entitled 
to  impute  kuowdedge  of  that  possession  to  all  who  deal  for  any 
interest  in  the  property,  and  persons  so  dealing  cannot  be 
heard  to  deny  notice  of  the  title  under  which  the  possession  is 
held;^*  nor  is  it  necessary  that   such  possession  should  be 

Van  V.  Corpe,  3  M.  &  K.  269,  supra,  p.  *  Morley  v.  aavering,  29  Beav.  84. 


92 


Jl). 


'  Sputiner  v.  Walsh,  10  Ir.  Eq.  386.  *  Taylor  v.  Stibl)ert,  2  Ves.  Jr.  437 

"  Ilanlnu-y  v.  Lit'hfield,  2   M.  &  K.  Croftou  v.  Ormsby,  2  Sch.  <fe  Lef.  583 

629;  Fii'A-lit  ?;.  Barton,  3  M.  »fe  K.  282  ;  Powell  v.   Dillon,   2  Ba.   &  Be.    416, 

Kelthorpe  v.  Holgate,  1  Coll.  203;  Mar-  Greenwood  v.  Bairstow,  5  L.  J  Cb.  N, 

tin  «.  CottiT,  3  J.  <fc  L.  507  ;  Williams  •«.  S.   179;    Jones   v.    Smith.    1    Ha.    60; 

Livesev,  18  Beav.  206;  Brumfit  v.  Mor-  Bailey  v.  Richardson,  9  Ha.  734  ;  Att.- 

ton,  3  Jur.  X.  S.  1198;  Darlington  v.  Gen.  v.  Stephens,  1  K.  tfe  J.  750 ;  Holmea 

Hamillon,  Kay,  550.  v.  Powell,  8  D.  M.  &  G.  580. 
^  Smith  V.  Capron,  7  Ha.  191. 


*  Harris  ®.  Carter,  3  Stew.  233  ;  Bucldngliam  t'.  Smith,  10  Ohio,  288; 
Patten  v.  Hollidaysljurg,  40  Penn.  206 ;  Hardy  v.  Summers,  10  G  &  J.  316  ; 
Hanly  v.  Morse,  32  Me  287;  Hughes  v.  United  States,  4  Wall.  232  ;  More- 
land  V.  Lemaster,  4  Blackf.  883 ;  Landis  v.  Brant,  10  How.  375  ;  Lea  v. 
Polk  County  Copper  Co.,  21  How.  499  ;  Griswold  v.  Smith,  10  Vt.  452 ; 
Morgan  v.  Morgan,  8  Stew.  383 ;  Walker  v.  Gilbert,  1  Freem.  Cli.  85 ; 
Jenkins  v.  Bodley,  1  Smed.  &  Mar.  Ch.  338  ;  Witter  v.  Hightower,  6  Smed. 


FEAUD  UPON  TBIRD  PARTIES.  245 

continually  visible,  or  actively  asserted.  If  a  man  Las  once 
received  rightml  possession  of  land,  lie  may  go  to  any  distance 
from  it  without  authorizing  any  servant,  or  agent,  or  other 
person,  to  enter  upon  it,  or  look  after  it,  may  leave  it  for  years 
uncultivated  and  unused,  may  set  no  mark  of  ownership  upon 
it,  and  his  possession  may  nevertheless  continue,  at  least  unless 
his  conduct  afford  evidence  of  intentional  abandonment.  A  man 
who  knows,  or  cannot  be  heard  to  deny  that  he  knows,  another 
to  be  in  possession  of  a  certain  property,  cannot  for  any  civil 
purpose,  as  against  him  at  least,  be  heard  to  deny  having 
thereby  notice  of  the  title,  or  alleged  title,  under  which,  or  in 
respect  of  which,  the  former  is  or  claims  to  be  in  that  posses- 
sion.^ Where,  accordingly,  the  purchaser  of  mines  took 
possession  under  the  agreement  for  purchase,  without  any 
conveyance,  it  was  held  that  a  subsequent  purchaser  of  land, 
without  any  exception  of  mines,  took  with  notice  of  the 
agreement.' 

» Holroes  v.  Powell,  8  D.  M.  &  G.  580.  •  Holmes  v.  Powell,  8  D.  M.  &  G.  580. 


&  Mar.  345 ;  Smith  v.  Sbane,  1  McLean,  33 ;  Grimstone  v.  Carter,  3  Paige, 
431 ;  Diehl  v.  Page,  3  Green's  Ch.  143  ;  Baldwin  v.  Johnson,  Saxtou,  441  ; 
Knox  V.  Thompson,  1  Litt.  350  ;  Brown  v.  Anderson,  1  Mon.  193  ;  Johnston 
V.  Glaucey,  4  Blackf.  94. 

In  this  country,  where  the  registration  of  deeds  as  matters  of  title  is 
universally  provided  for,  courts  of  equity  will  not  enlarge  the  doctrine  of 
constructive  notice,  nor  follow  English  cases,  except  with  cautious  atten- 
tion to  their  application  to  the  circumstances  of  our  country,  and  to  the 
structure  of  our  laws.     Flagg  v.  Mann,  3  Sumner,  4b6. 

Possession  is  not  evidence  of  notice,  unless  that  possession  was  known 
to  the  purchaser,  nor  can  it  be  conclusive  if  it  be  known ;  and,  therefore 
is  not  equivalent  to  recording.  It  is  at  most  implied  notice,  which  may 
be  rebutted.  Harris  v.  Arnold,  1  R.  I.  136 ;  Vaughan  v.  Tracey,  33  Mo. 
415  ;  Hewes  v.  Wiswall,  8  Grcenl.  94  ;  Emmons  v.  Murray,  16  K  H.  385. 

The  notice  is  merely  an  inference.  It  may  not  arise  in  some  cases  ;  it, 
may  be  repelled  in  others ;  and  in  others  it  may  be  restricted  to  some 
particular  title.  The  rule,  like  all  rules  of  circumstantial  evidence,  must 
be  governed  by  the  particular  circumstances  of  each  case,  and  have  a 


246  FRAUD  UPON   TRIED  PARTIES. 

Tf  there  be  a  tenant  in  possession  of  land,  a  purchaser  is 
hound  by  all  the  equities  which  the  tenant  could  enforce 
against  the  vendor,  and  the  equity  of  the  tenant  extends  not 
only  to  interests  connected  with  his  tenancy,  as  in  Taylor  v. 
Stibbert,^  but  also  to  interests  under  collateral  aji^reenicnts,'  the 
principle  being  the  same  in  both  cases,  namely,  that  r.he  pos- 
session of  the  tenant  is  notice  that  he  has  some  interest  in  the 
land,  and  that  a  purchaser  havin<);  notice  of  that  fact  is  bound 
either  to  inquire  what  the  interest  is,  or  to  give  eti'ect  to  it 
whatever  it  may  be.®  *  If  the  tenant  has  even  changed  his 
character  by  having  agreed  to  purchase  the  estate,  his  posses- 
sion amounts  to  notice  of  his  equitable  title  as  pm'chaser/ 

'  2  Ves.  Jr.  437.  *  Daniels  v.  Davison,  16  Ves.  249;  17 

*  Daniels  y.  Davison,  16  Ves.  249;  17  Ves.  433;  Crofton  •>.  Orm.sb>'.  2  >ch.  & 

Ves.   433;  Allen   v.   Anthony,   1  MeT.  Lef.  583;  Powell  v.  Dillon,  2  Ba.  &  Be. 

282.  416;  Wilbraham  h.  lavesey,   18  Beav. 

■  Earnhardt  v.  Greenshields,  9  Moo,  206, 

P.  C.  32;  Knight  v.  Bowyer,  2  D.  &  J. 

450. 


reasonable  operation.  Cook  v.  Travis,  22  Barb.  338 ;  Faust  d.  Smith,  23 
N.  Y.  252. 

Possession  under  a  recorded  deed  is  uot  notice  of  rights  under  an 
unrecorded  deed.     Great  Falls  Co.  v.  Worster,  15  N.  H.  412. 

There  is  no  eificacy  in  a  possession  which  terminated  before  the  nego- 
tiation that  led  to  the  purchase  commenced.  Wright  u.  Wood.  23  Penn. 
120. 

Joint  possession  by  a  vendor  and  vendee  is  no  notice  of  an  unrecorded 
deed.     Smith  v.  Yule,  31  Cal.  180. 

Possession  by  a  mortgagor  after  foreclosure  is  not  notice  of  any  secret 
trust  in  his  favor.     Surmberger  v  Webster,  1  Clark,  188. 

Possession  is  notice  to  judgment  creditors  of  the  vendor.  Massey  v. 
Mcllwain,  2  Hill's  Ch,  421 ;  Macon  c.  Sheppard,  2  Humph.  335 ;  Ilackwith 
i\  Damson,  1  Mon.  235. 

*  Disbrow  v.  Jones,  Harring's  Ch.  48 ;  McMechen  v.  Griffing,  3  Pick.  149. 
Possession  by  a  tenant  is  not  notice  of  the  landlord's  title.    Smith  v.  Dall,  13 

Cal.  510, 

The  possession  of  a  cestui  que  trust  is  not  constructive  notice  of  the 
leo-al  title  of  the  trustee.     Scott  v.  Gallagher,  14  S.  &  R,  333. 

The  possession  of  an  intruder  is  not  notice  of  the  title  of  a  stranger. 
Wright  V.  Wood,  23  Penn.  120. 


FRAUD  UPON  THIED  PARTIES.  247 

The  principle  that  possession  bj  a  tenant  of  land  is  notice 
of  the  terms  of  his  holding  applies  to  a  case  where  a  man  buys 
property  subject  to  an  easement.  He  is  bound  by  all  the 
equities  which  bound  his  vendors.^  So  also  when  the  mort- 
gagee of  a  burial  ground  had  notice  of  the  purposes  to  which 
it  was  devoted,  he  was  held  bound  by  the  right  of  burial,  tem- 
porary or  in  perpetuit}^,  granted  by  his  mortgagor  when  left  iu 
possession.^ 

Notice,  however,  of  a  past  tenancy  is  not  notice  of  the  ten- 
ants' equitable  interests,^  nor  when  the  vendor  is  himself  the 
tenant,  and  has  acknowledged  payment  of  the  purchase  money 
both  in  the  body  of  the  conveyance  and  by  the  usual  endorsed 
receipt,  is  the  tenancy  notice  of  his  lien  for  any  part  thereof 
which  may  in  fact  remain  unpaid.*  ISTor  is  notice  of  a  tenancy 
necessarily  notice  of  the  tenant's  equities  as  between  vendor 
and  purchaser.'^  ISTor  is  notice  of  a  tenancy  constructive  notice 
of  the  lessor's  title.^  ]^or  will  a  hond  fide  purchaser,  other- 
wise without  notice,  be  affected  by  the  mere  circumstance  of 
the  vendor  having  been  out  of  possession  for  many  years.  A 
purchaser  neglecting  to  inquire  into  the  title  of  the  occupier  is 
not  affected  by  any  other  equities  than  those  which  such  occu- 
pier may  insist  on.  If  a  person  equitably  entitled  to  an  estate 
lets  it  to  a  tenant  who  takes  possession,  and  then  the  person 
having  the  legal  estate  sells  to  a  person  who  purchases  hona 
fide  and  without  notice  of  the  equitable  claim,  the  purchaser 
will  hold  against  the  equitable  owner,  although  he  had  notice 
of  the  tenant  being  in  possession.'  In  all  the  cases  the  pos- 
session relied  on  has  been  the  actual  occupation  of  the  land, 
and  the  equity  sought  to  be  enforced  has  been  on  behalf  of  the 

'  Hervoy  v.  Sroitb,  1  K.  <fe  J,  389;  22  •  Neltborpe  v.  Holgate,  1  Coll.  203. 

Beav.  499.  '  Jones  v.  iSniith,  1  Ha.  63,  per  Wig- 

"  Moreland  v.  Richardson,  22  Beav.  ram,  V.-C;  Bernhardt  v.  Greeushields, 

596.  9  Moo.  P.  C.  34. 

'  Miles  V.  Langley,  1  R.  <fe  JI.  39 ;  2  '  Oxwith  v.   riummor,  2  Vcrn.  636 ; 

R.  <fe  ]M.  026.  Earnhardt  v.  GreLUshields,  9  Moo.  l\  C 

♦  White  V.  Wakefield,  1  Sim.  401.  34. 


2-18  FRAUD  UrON  THIRD  PARTIES. 

party  so  in  possession.^*  But  it  must  be  remembered  that  by 
the  ^arty  in  oGcupation  is  meant,  not  merely  the  person  who 
by  himself  and  his  laborers  tills  the  ground,  but  the  person 
who  is  known  to  receive  the  rents  from  the  person  in  occupa- 
tion.' So  also  notice  of  the  legal  estate  being  outstanding  is 
notice  of  the  trusts  on  which  it  is  held ;  ^  and  notice  that  the 
title  deeds  are  in  the  possession  of  a  third  party,  is  notice  of 
any  charge  he  has  upon  the  property.* 

So  also,  and  upon  the  same  principle,  a  person  has  been 
held  to  be  affected  with  notice  of  a  fraud  affecting  a  deed,  and 
which  the  unusual  manner  in  which  it  was  executed  ought  to 
have  suggested  to  his  solicitor.^  So  also,  if  a  bill  be  accepted 
in  blank,  and  the  acceptor  was  aware  of  the  fact,  there  is  notice 
of  any  fraudulent  use  that  may  have  been  made  of  it.'  So 
also  a  lessee,'  or  a  sub-lessee,  has  notice  of  the  title  of  the  im- 

'  Earnhardt  v.  Greensbields,  9  Moo.  See  Greenslade  v.  Dare,  20  Beav.  291  ; 

p  c.  34.  Greenfield  v.   Edwards,  2  D.  J.  <t  G. 

'''KniLiht  V.  Bowyer,   23  Beav.   609,  582;  Sug.  V.  <fc  P.  776. 

640,  641,  2  D.  &  J.  421.  "  Hatch  v.  Searlea,  24  L.  J.  Ch.  22. 

"Anon.  2  Freem.  137.  See  Sharp  v.  Arbuthnot,  13  Jur.  219. 

*  Hiern  v.  Mill,  13  Ves.  122;  Dryden  '  Att.-Gen.  v.  Backhouse,  17  Ves.  293; 

V  Frost,  3  M.  <fe  C.  670.  Butler  v.  Lord  Portarlington,   1  Dr.  & 

'  •  Kennedy  v.  Green,  3  M.  &.  K.  699.  War.  20 ;  Att.-Gen.i;.  Hall,16  Beav.  388. 


*  Kendall  «.  Lawrence,  33  Pick.  540  ;  Holmes  ».  Stout,  3  Stockt.  419  ; 
Coleman  v.  Barklew,  3  Dutch.  3-57;  Truesdale  v.  Ford,  37  111  310;  Ely  v. 
Wilcox,  30  Wis.  533 ;  Blankenskip  ».  Douglass,  36  Tex.  335 ;  Patten  v. 
Moore,  33  N.  H.  383. 

Tlie  holder  of  an  unrecorded  deed  must  show  a  possessio  pedis,  an  actual 
"bona  fide  possession  consistent  with  his  written  title ;  and  this  possession 
must  be  evidenced  by  an  actual  inclosure,  or  something  equivalent,  as 
showing  the  extent  and  the  fact  of  his  dominion  and  control  of  the  prem- 
ises.    Havens  v  Dale,  18  Cal.  359. 

The  possession  must  b8  such  an  occupancy  of  the  land  as  will  put  any 
person  upon  inquiry,  and  indicate  the  party  of  whom  inquiry  is  to  be 
made.  Green  r.  Drinker,  7  W.  &  S.  440 ;  Rogers  v.  Jones,  8  N.  H.  264 ; 
Williams  v.  Sprigg,  6  Ohio  St.  R.  585. 

Possession  is  not  notice,  when  the  purchaser  also  knows  that  the  pos- 
sessor has  been  in  possession  for  some  time  without  claiming  title.  Mat- 
thews V.  Demerritt,  9  Shep.  313. 


FRAUD  UPON  THIRD  PARTIES.  249 

raediate  and  (in  the  case  of  a  sub-lessee)  original  lessee.^  So 
where  a  family  solicitor,  who  had  prepared  a  marriage  settle- 
ment, became  the  apparent  purchaser  of  the  estate  under  a 
fictitious  exercise  of  the  usual  power  of  sale,  and  subsequently 
executed  instruments  purporting  to  vest  the  estate  in  the  hus- 
band, and  then,  as  the  husband's  solicitor,  applied  for  a  loan  on 
morto'ao-e,  and  delivered  an  abstract  of  the  title  as  above  re- 
ferred  to  in  the  usual  wav,  with  his  name  as  solicitor,  it  was 
held  that  the  pm-chaser  had  implied  notice  of  his  having  been 
the  solicitor  who  prej^ared  the  settlement,  and  of  the  irregular- 
ity of  the  nominal  purchase.^  So,  a  mortgagee  having  notice 
that  a  bill  which  formed  part  of  the  consideration  for  the  pur- 
chase of  the  estate  by  the  mortgagor,  remained  unpaid,  has 
been  held  bound  to  inquire  whether  the  vendor  has  any  lien  on 
the  estate,  the  deed  of  conveyance  leaving  the  point  doubtful.* 
So,  a  purchaser  dealing  with  trustees  for  sale  at  a.  time  or  under 
circumstances  suggestive  of  the  probability  of  the  sale  being  a 
breach  of  trust,  is  bound  to  inquire  and  see  whether  any  such 
breach  of  trust  is  in  fact  being  committed.*  So  also  notice  of 
a  deed  is  not  only  notice  of  its  contents,  but  of  the  facts  to  a 
knowledge  of  which  the  insisting  on  its  production  would  have 
necessarily  led.^  So  also  a  man  who  buys  property  from  an 
agent,  with  distinct  notice  that  the  party  with  whom  he  is 
dealing  is  an  agent,  has  cast  upon  him  the  liability  of  sustain- 
ing the  transaction  just  as  much  as  the  agent  himself.  If  the 
transaction  could  not  be  upheld  by  the  agent,  neither  could  it 
be  supported  by  a  purchaser  from  that  agent,  if  he  deals  with 
him  in  his  character  of  agent. ^ 

When,  however,  a  sale  by  fiduciary  vendoi*s  is  apparently 
regular,  a  purchaser  need  not  inquire  into  collateral  questions, 

'  Stecdman  v.  Poole,  6  Ila.  193.     See  *  Strougliill  a.  Anstcy,  1  D.  K  <fe  G. 

Cesser  v.  Collinge,  3  M.  &  K.  283.  635. 

"  iiobiuson   v.  Briggs,   1  Sm.    &   G.  '  Peto  v.  Hammond,  30  Beav.  495. 

188.  •  Molony  v.  Keruan,  2  Dr.  &  War.  40 

*  Frail  v.  Ellis,  16  Beav.  350. 

17 


250  FRAUD  UPON  THIRD  PARTIES. 

sucIl  as  tlie  mode  in  wliicli  tlie  sale  has  been  conducted,* 
although  he  will  be  affected  with  notice  of  a  breach  of  trust 
clearly  deducible  from  facts  appearing  in  the  assurance.^  Nor, 
although  a  purchaser  of  a  lease  is  bound  to  know  from  whom 
the  lessor  derived  his  title,  is  he  affected  with  notice  of  all  the 
circumstances  under  which  he  so  derived  it.'  Nor,  seirible^  is 
notice  of  a  lease  notice  of  collateral  facts  mentioned  in  the 
lease.^  Nor,  on  the  purchase  of  A,  one  of  two  adjoining 
estates  belonging  to  the  same  owner,  is  notice  of  building 
covenants  entered  into  bj"  such  owner  with  a  mortgagee  of  the 
adjoining  estate  B,  notice  of  the  expenditure  on  both  estates 
of  money  which,  under  the  covenant,  ought  to  have  been  ex- 
pended on  B  exclusively.' 

The  possession  of  a  client's  deeds  by  a  solicitor  is  so  usual, 
and  so  much  in  che  ordinary  course  of  transactions,  that  where 
a  man  purchases  an  estate,  and  is  informed  that  the  deeds  are 
in  the  hands  of  the  solicitor  of  the  owner  of  the  estate,  there 
is  nothing  which  renders  it  necessary  for  him  to  inquire  under 
what  circumstances  the  solicitor  held  the  deeds.^  When  a 
solicitor  acquires  by  contract  a  different  interest  beyond  what 
his  character  of  solicitor  confers  (such  as  equitable  mortgagee), 
it  iB  incumbent  on  him  immediately  to  give  clear  and  distinct 
notice  of  such  interest  to  all  persons  in  visible  ownership  of 
the  estate.  Such  a  case  is  not  within  the  principle  of  the  cases 
in  which  a  purchaser  of  land  has  been  held  bound  to  inquire 
of  the  tenant  in  possession  the  nature  of  his  interest.' 

The  omission  of  a  purchaser  of  property  to  inquire  after 
the  title  deeds  is  gross  negligence,  and  will  affect  him  with 
the  knowledge  which  he  might  have  obtained  upon  inquiry, 

•  See  Borell  v.  Dann,  2  Ila.  440,  450,  '  Att.-Gea.  v.  Blackhouse,  *?  Ves.  293, 

See  "Ware  v.  Egmout,  4  D.  M.  <fe  G.  ■*  See  Darlington  v.  Uamilton,  Kay, 

460.  556. 

»  See  Att.-Gen.  «.  Part^eter,  6  Bear.  ^  Harryman  v.  Collins,  18  Beav.  19. 

150;  Ker  v.  Lord  Dungaunon,  1  Dr.  «fc  *  Bozon  v.  WUliams,  3  Y.  &  J.  150. 

War.  509,  542.  '  Ih, 


ITRAUD  UPON  TniRD  PARTIES.  251 

The  possession  of  the  legal  estate  will  not  protect  a  man  -who 
has  omitted  to  inquire  after  the  title  deeds,  or  who  accepts  a 
frivolous  excuse  for  their  non-production  against  the  claim  of 
an  innocent  partj.^  So  also,  a  man  taking  from  a  vendor  who 
has  not  possession  of  the  deeds,  will  take  with  notice  of  any 
claim  which  the  party  in  possession  of  the  title  deeds  has.^ 
The  omission,  however,  of  a  purchaser  to  inquire  for  the  deeds 
will  not  affect  him  with  knowledge  of  fraud  committed  by  the 
person  of  whom  he  was  bound  to  make  inquiry,^ 

Though  notice  of  a  deed  is  notice  of  its  contents,  the  mere 
fact  that  a  man  has  been  witness  to  the  execution  of  a  deed 
will  not  of  itself  fix  him  with  notice  of  the  contents.*  I^or  is 
notice  of  a  will  passing  all  the  testator's  real  estates  generally, 
and  not  specifically,  notice  of  all  the  particular  estates  which 
the  testator  had  to  pass.^  Nor  if  a  purchaser  has  notice  ouly 
that  a  draft  of  the  deed  is  prepared,  and  not  that  the  deed  was 
executed,  would  he  be  bound  by  notice,  although  the  deed  was 
actually  executed ;  for  a  purchaser  is  not  to  be  affected  by 
notice  of  a  deed  in  contemplation.® 

A  mere  statement  that  further  information  is  to  be  had  at 
the  office  of  a  comj^any,  is  hot  enough  to  put  persons  upon 
inquiry  whether  statements  put  forward  by  directors  are  true 
or  false.'''  But  if  a  man,  on  being  specially  referred  to  another 
for  information,  neglects  to  apply  to  him,  he  will  be  held  to 


'  Worfhington   v.   Morgan,    16    Sim.  Bozon  v.  "Williams,   3  T.  and  J.  150, 

647;  Tvlue  v.  Webb,  6  Beav.  552;  Al-  supra,  pp.  140,  141. 

leii  V.  Kuiglit,  5  JIa.  272;   11  Jur.  527;  ^  Ilipkins  v.  Amery,  2  Giff.  292. 

Hewctt  V.  Loosemore,  9  Ha.  449 ;  Col-  *  Mocatta  v.  Murgatroyd,  1  P.  Wma. 

yer  v.  Finch,  5  H.  L.  905;  Tildesley  v.  893;  Beckett  v.   Cordley,  1    I5ro.  C.  C. 

Lodge,  3  Mil.  &  G.  543  ;  Perry-MeiTick  357 ;  llaiicliffe  v.  Parkins,  6  Dow,  149, 

V.  Attwood,  2  D.  «fe  J.  21  ;   Atterbury  v.  222 ;  Sug.  V.  <fe  P.  751, 

"VVallis,  8  D.  iM.  &  G.  454  ;  Vaio  v.  IJara-  "  liancliffe   v.    Parkins,  6  Dow,   149, 

mond,  3-t  Beav.  495;    Worinald  v.  Mait-  222-224. 

land,    35    L.   J.   Cli.    69 ;    llopgood   v.  °  Cotliay  v.   Sydenham,  2  Bro.  C.  0. 

Erncdt,  3  D.  J.  &  .s.  116,  supra,  pp.  140,  391.     See  Jones  v.  Wmith,  1  Ha.  63  :  1 

141.  Ph.  256. 

*  Dryd<m  v.  Frost,  3   M.  <fe   C.   670.  '  Smith  v.  Reese   River  Co.,  L,  R.  2 

See  Iliura  i'.  Mill,  13  Ves.  122.     Comp.  Eq.  209. 


252  FRAUD  UPON  THIRD  PARTIES. 

liave  notice  of  what  be  might  have  learnt  upon  inquiry.*  So 
also  if  a  man,  having  reasonable  grounds  to  suspect  the 
existence  of  a  fact  of  importance,  asks  one  of  the  parties  to 
the  transaction,  who  refuses  all  information,  but  does  not  ask 
other  parties,  whom  he  has  reason  to  believe  to  be  able  and 
willing  to  give  him  information,  his  ignorance  is  willful.^  A 
party  relying  on  his  ignorance  of  fact  must  show  not  only  that 
he  had  not  the  information,  but  that  he  could  not  with  dili- 
gence have  obtained  it,^ 

A  man  who  in  dealing  for  property  is  told  of  anything  as 
affecting  the  property,  though  incorrectly,  can  not  rely  on 
what  is  told  him,  but  is  bound  to  make  further  inquiry,  and  to 
•ascertain  the  exact  truth.*  If  a  man  knows  that  another  has 
or  claims  an  interest  in  property,  he,  in  dealing  for  that  prop- 
erty, is  bound  to  inquire  what  that  interest  is,  although  it  may 
be  inaccurately  described.^  If  a  man  be  told  or  has  notice  that 
a  certain  instrument  affects  the  property  in  question  in  some 
particular  respect,  he  will  be  fixed  with  notice  of  its  provisions 
if  it  should  turn  out  to  affect  the  j)roperty  in  other  respects 
also.*  Notice  of  a  charge  to  an  indefinite  amount,  although 
the  notice  be  inaccurate  as  to  the  particulars,  or  the  extent  oi 
the  charge,  is  sufficient  to  put  upon  inquiry  a  party  dealing 
for  the  property  subject  to  the  charge,  and  if  the  actual  charge 
appear  afterwards  to  be  incorrectly  described  in  the  notice,  it 
is  nevertheless  sufficient  as  a  ground  for  giving  priority  for 
the  true  amount  of  the  charge  as  against  the  party  who  re- 
ceived the  incorrect  notice,  but  made  no  inquiry.' 

In  Taylor  v.  Baker,*  a  party,  at  the  time  of  making  his 

•  Wason  V.  Waring,  15  Beav.  151.  '  Taylor  v.  Baker,  5  Pri.  306  ;  Jack- 
'  Bainbrigge  v.  Moss,  3  Jur.  N.  S.  58.  son  v.  Rowe,  2  Sim.  &  St.  475  ;  Farrow 
'  Wason  V.  Waring,  15  Beav.  151.            v.  Rees,  4  Beav.  18;  Mitchell  v.  Stew- 

*  Wilson  V.  IIart."2  H.  &  M.  551 ;  L.       ard,  35  L.   J.  Ch.  393.     See  Jones  v. 
R.  1  Ch.  A[)p.  4(53.    See  Jones  v.  Smith,       Smith,  1  Ph.  255. 

1  Ph.   255.     Comp.  re  Bright's  Trust,  '  Gibson  v.  Ingo,  6  Ha.  124. 

21  Beav.  430.  •  6  Pri.  306. 

'  Gibson  v.  Ingo,  6  Ha.  112,  124,  See 
Att,-Geu,  c.  Jones,  2  Jur.  369. 


FRAUD  UPON  THIED  PARTIES.  253 

purchase,  and  before  it  was  made,  had  actual  notice  that  a 
certain  person  had  a  judgment  and  warrant  of  attorney  which 
affected  the  purchased  estate.  It  turned  out,  however,  that  he 
had  a  mortgage  and  not  a  judgment,  and  the  court  held  that 
the  purchaser,  having  notice  that  he  had  an  interest  affecting 
the  property,  could  not  ward  off  the  claim  to  the  incumbrance, 
only  because  the  nature  of  the  claim  was  different  from  that 
which  the  notice  conveyed  to  him.^  The  principle  was  carried 
farther  in  Penny  v.  "Watts.^  A  man  there,  who  claimed  under 
a  marriage  settlement  as  a  purchaser  without  notice,  had 
notice  before  his  marriage  that  a  legatee  had  given  up  her 
leo-acy  under  a  will  in  favor  of  the  intended  wife,  to  whom 
the  estate  upon  which  it  was  charged  belonged,  and  which  was 
comprised  in  the  subsequent  marriage  settlement ;  and  had 
also  notice  that  the  intended  wife  had  in  consequence  devised 
to  the  legatee  a  portion  of  the  estate,  and  that  the  legatee  was 
dead.  This  was  held  by  Lord  Cottenham  to  be  notice  as  lead- 
ing to  inquiry  of  an  equitable  reversionary  title  in  the  husband 
of  the  legatee  under  a  subsequent  agreement  with  the  hidy, 
the  devisor,  before  her  marriage,  to  convey  the  devised  estate 
to  him.  It  has,  however,  been  considered  by  Lord  St.  Leon- 
ards,* and  in  Abbott  v.  Gerahty,*  that  this  case  carries  the 
principle  too  far. 

Though  a  man,  who  has  actual  notice  that  the  property  in 
respect  of  which  he  is  dealing,  is  in  fact  affected  by  a  j)articu- 
lar  instrument,  is  bound  to  examine  that  instrument,  he  is  not 
bound  to  examine  instruments  which  are  not  directly  or  pre- 
sumptively connected  with  the  title  to  the  property  in  ques- 
tion, merely  because  he  knows  that  they  exist,  and  may  by 
possibility  affect  it.     If  an  instrument  does  not  necessarily 


'  See  Steadman  v.  Poole,  16  L.  J.  Ch.  '  Sug.  V.  &  P.  766. 

S49;  6lla.  VXi.  *  4  li-.  Ch.  23. 

••'  1  Mac.  &  G.  150. 


254  FRAUD  UrON  THIRD  PARTIES. 

affect  the  title,  but  only  may  or  may  not  do  so  according  to 
circumstances,  the  omission  to  examine  it  will  not  fix  a  party 
with  gross  negligence,  if  there  is  no  reason  to  suppose  that  he 
may  have  acted  otherwise  than  fairly  in  the  transaction.^  j^or 
is  notice  that  certain  circumstances  exist  which  may  by  possi- 
bility affect  the  property  in  dispute  sufficient  to  put  a  man 
upon  inquiry,  if  he  appear  to  have  acted  fairly  in  the  transac- 
tion.^ A  purchaser,  for  instance,  will  not  be  affected  by  an 
ambiguous  recital,^  or  by  circumstances  inducing  merely  a 
suspicion  of  fraucl,^  or  by  the  usual  trust  of  a  term  to  attend 
the  inheritance,  where  no  reference  is  made  to  any  particular 
instrument  or  course  of  limitations ;  ^  so  notice  of  there  being  a 
change  of  solicitors  who  are  professionally  to  rej^resent  a  par- 
ticular interest,  is  not,  in  itself,  notice  of  a  change  in  the 
ownership  of  such  interest;*  nor  is  the  mere  fact  of  a  daughter, 
soon  after  coming  of  age,  giving  securities  to  a  creditor  of  her 
father  in  payment  of  his  debt,  of  itself  a  ground  for  imputing 
to  the  creditor  knowledge  of  undue  influence  having  been 
exerted  over  her  by  her  father.'  To  affect  the  creditor  with 
notice  of  undue  influence,  it  is  not  enough  to  show  that  he 
was  aware  of  the  reluctance  of  the  daughter  to  concur  in  the 
security.^ 

In  Hervey  v.  Smith,'  the  purchaser  of  a  house  to  which  a 


'  Kenney  v.  Browne,  3  Ridg.  P.  C.  *  M'Queen  v.  Farqiibar,  11  Ves.  482. 

512;  Joiii's  V.   Smith,   1  Ha.  43,  1  Ph.  See  Dodds  v.  Hills,  2  H.  &  M.  426. 

254 ;  West  v.  Reid,  2  Ha.  249;  Ware  v.  *  Dart,  V.  &  P.  566. 

Egmoiit,  4  D.  M.  &.  G.  400;  Harryman  '  West  v.  Reid,  2  Ha.  249. 

V.  Collins,  18  Beav.  11;   Greenslade  v.  '  Thornber  v.  Sheard,  12  Beav.  589. 

Dare,  20  Beav.  284 ;  7?P  Bright's  Trust,  See  Cobbett  v.  Brock,  20   Beav.  524. 

21  Beav.  430:   Stephenson  v.  Royse,  5  Comp.  Espey  v.  Lake,  10  Ha.  260;  Ser- 

Ir.  ell.  401 ;  Cox  i'.  Coventon,  31  Beav.  combe    v.    Saunders,    34    Beav.    382; 

878;  General  Steam  Navig-ation  Co.  v.  Berdoe  v.  Dawson,  ib.  603.     See  supra, 

Rolt,  6  C.  B.  N.  S.  550;  Perry  r.  Holl.  p.  180. 

2  D.  F.  &  J.  38.     See  Jie  National  Life  "  Rhodes  v.  Cook,  4  L.  J.  Ch.  149,  2 

Assurance  and  Investment  Co ,  31  L.  J.  Sim.  &  St.  488.     See  Blackie  v.  Clark, 

Ch.  828.  16  Beav.   595.     Comp.  Maitland  v.  Ir- 

"  If).  ving,  15  Sim.  441. 

"  Kcnney  v.  Browne,  3  Ridg.  P.  C.  '22  Beav.  299. 
512      Sea  2  Ha.  175. 


FKAUD  UPON  THIED  PARTIES.  255 

wall  having  fourteen  flues  or  chimneys  in  it  belonged,  twelve 
onlj,  however,  of  which  were  used  by  the  house,  was  held 
bound  by  this  fact  to  know  that  the  other  two  must  have 
been  used  by  his  neighbor.  But  the  doctrine  of  constructive 
Dotice  was  carried  too  far  in  that  case.* 

Nor  is  a  man  bound  to  examine  a  deed  or  document, 
which  does  not  necessarily  from  its  very  nature  affect  the 
property  in  question,  if  he  be  told  that  it  does  not  affect  it,  and 
he  acts  fairly  in  the  transaction,  and  believes  the  representa- 
tion to  be  true.^  The  effect,  indeed,  of  what  would  otherwise 
be  notice,  may  be  destroyed  by  misrepresentation.  A  man  to 
whom  a  particular  and  distinct  representation  is  made  is 
entitled  to  rely  on  the  representation,  and  need  not  make  any 
further  inquiry,  although  there  are  circumstances  in  the  case 
from  which  an  inference  inconsistent  with  the  representation 
might  be  drawn,  and  which,  independently  of  the  representa- 
tion, would  have  been  sufficient  to  put  him  upon  inquiry,'  or, 
although  he  is  told  that  further  information  may  be  had  on  the 
matter  by  making  inquiries  from  a  particular  person,  or  at  a 
particular  place.*  A  man  is  entitled  to  rely  on  the  representa- 
tions of  the  vendor  as  to  the  contents  of  a  deed,  and  is  not 
bound  to  examine  the  deed  itself.^  So,  also,  a  man  who  pur- 
chases shares  in  a  company  on  the  faith  of  a  prospectus,  may 
rely  on  the  statements  made  therein,  and  is  not  bound  to 
ascertain  whether  they  are  true.®  The  mere  fact  that  he  may 
have  attended  a  meeting  of  the  comj)any  is  not  a  sufficient 


»  Bug.  V.  dr.  p.  %6.  *  Grosvenor  v.  Green,  28  L.  J.  Ch 

•Jones  V.  Smith.   1  Ha.  43.  1    Ph.  173;  M'Culloch  v.  Gregory,  1  K.  cfe  J 

254;  lie  Bright's  Trust,  21  Beav.  430.  286;   Jie  Briglit's  Trust,  21  Beav.  430, 

'Van   V.    Corpe,   3   M.    &   K.    269;  Cox  v.  Coventon,  31  Beav.   378;    Ex- 

Flight  i>.  Barton,  ?6.  282;  Pope  v.  Gar-  parfe   Briggs,  L.    R.    1   Eq.  483.     See 

land.  4  Y.  <fe  C.  394;  Wilson  v.  Short,  6  Martin  v.  Cotter,  3  J.  cfe  L.  505. 

Ha.  366,  367;  Vignolles  v.  Bowcn,  12  "  Smith  v.  Reese  River  Silver  Mining 

Ir  Eq.  385;  Cox  ik  Middleton,  2  Drew.  Co.,  L.  R.  2  Eq.  264;  Stewart's  Case,  L. 

209,  .nipra,  pp.  80,  81.  R.  1  Ch.  App.  574. 

"Smith  V.   Keese  River  Silver  Min- 
ing Co.,  L,  11.  2  Eq.  264. 


256  FKAUD  UrOX  third  PAPtTIES. 

ground  for  fixing  liim  with  notice  of  the  falsity  of  tlie  repre- 
sentations in  the  prospectus.*  I^or  will  a  shareholder  in  a 
company  be  affected  with  knowledge  of  the  documents  refer- 
red to  in  the  memorandum,  or  articles  of  association  of  a  com- 
pany, as  to  be  debarred  from  complaining  of  any  false  or 
deceptive  statements  which  may  have  been  made  as  to  the 
contents  of  those  documents.^ 

If  a  lonafide  inquiry  be  made  in  the  proper  quarter,  and  a 
reasonable  answer  be  given,  a  man  may  rest  satisfied  with  the 
information,  and  need  not  make  any  further  inquiry.^  A  man, 
for  instance,  who,  on  the  purchase  of  property  homX  fide, 
inquires  for  the  title  deeds,  is  not  bound  to  make  further 
inquiry,  if  a  reasonable  excuse  is  made  for  their  not  forth- 
coming.* So,  also,  if  deeds  are  deposited  with  a  man  by  the 
other  party  to  the  transaction,  which  purport,  or  are  repre- 
sented to  be  all  the  material  deeds  relating  to  the  estate,  and 
he  honestly  believes  the  representation  to  be  true,  he  is  not 
guilty  of  gross  negligence,  if  he  abstains  from  further  inquiry 
on  the  subject.^  The  fact  that  the  person  with  whom  he  is 
dealing,  and  who  makes  the  representation,  may  be  his  own 
solicitor,  is  immaterial,  if  the  representation  was  honestly  be- 
lieved to  be  true.® 

A  representation  or  an  answer  to  an  inquiry  will  not,  how- 
ever, dispense  with  the  necessity  of  further  inquiry,  unless  it 
be  made  by  a  person  upon  whose  representation  the  other 
party  is  entitled  to  rely  and  rest  satisfied.  The  representations 
of  a  man  bind  him  as  far  as  his  own  interest  is  concerned,  but 

^  Stewart's  Caso,  L.  R.  1  Ch.  App.  *  Hewitt  v.  Loosemore,  9  Ha.  449 ; 

574.     See  Webster's  Case,  L.  R.  2  Eq.  Espin  v.  Pemberton,   3  D.   ik  J.   547, 

741.  suj)ra,  p.   141. 

Mvisch?;.  Central  Venezuela  Railway  "Riberts   v.   Croft,    2    D.    &   J.    1 ; 

Co.,  3  D.  J.  &  S.  122.  Hunt  v.  Elmes,  2  D.  F.  <fe  J.  578. 

=  Jones  V.  Smitli,  1  Ha.  4.3  ;    Bird  v.  "  Roberts   v.    Croft,    2    D.    <fe   J.    1 ; 

Fox,  11  Ha.  47  ;    Jones  v.  Williams,  24  Hunt  v.  Elmes,  2  D.  F.  <fe  J.  578.      See 

Beav.  47  ;   Dawson  v.  Prince,  2  D.  &  J.  Perry  v.   HoU,  ib.  38;   Cory  v.  Eyre,  1 

44 ;  Kspin  v.  Pemberton,  3  D.  &  J.  547;  D.  J.  &  S.  168. 
Carter  v.  Carter,  3  K.  <fe  J.  618. 


FEAUD  UrON  THIRD  PARTIES.  257 

do  not  bind  the  interests  of  other  parties,  unless  he  was  author- 
ized by  them  to  make  the  representations.  An  mider-lessee 
must  not  rest  satisfied  with  the  representations  of  his  lessor, 
who  is  also  a  sub-lessee,  as  to  the  covenants  in  the  lease.  He 
iHust  go  back  to  some  one  who  can  give  him  more  comj)lete 
•nformation.^  Xor  should  a  man  who  deals  with  an  agent 
having  a  limited  authority  rest  satisfied  with  his  representa- 
iions  as  to  the  extent  of  his  authority,  but  should  refer  to  the 
principal  for  further  information.^  So,  also,  a  man  who 
accepts  a  conveyance  without  any  previous  investigation,  rely- 
ing on  the  mere  assurances  of  the  vendor  that  he  is  absolute 
owner,  wilj  be  held  to  have  constructive  notice  of  the 
title,  although  he  may  have  acted  without  any  fraudulent 
intention.^ 

The  effect  of  what  would  be  otherwise  notice  may  be 
destroyed  not  only  by  actual  misrepresentation,  but  by  mere 
silence,  or  by  anything  calculated  to  deceive,  or  even  lull  sus- 
picion on  a  particular  point.*  If  the  vendor  of  a  lease  be 
informed  by  the  purchaser  of  his  object  in  buying,  and  the 
lease  contains  covenants  which  will  defeat  that  object,  the 
silence  of  the  vendor  is  equivalent  to  a  misrepresentation.^ 
But  if  the  agent  of  the  purchaser  has  had  the  opportunity  of 
inspecting  the  original  lease,  the  vendor  need  not  inform  the 
purchaser  of  unusual  covenants  which  will  prevent  him  from 
carrying  out  his  intention.® 

Although  a  man  who  has  been  induced  to  enter  into  a 
transaction  by  misrepresentation  might  have  detected  the  mis- 

'  Parker  v.  "SVli}'te,   1   IT.  &  M.  107.  Drew.  1,  afFJ,   1   Jur.  N.  S.  149;  How 

See    Clements  v.  Welles,  L.  R.   1  Eq.  ard  v.  Cliaffer.s,  2  Dr.  &  Sin.  236.' 
200.  *  Pope  V.   Garlnnd,   4   Y.   <fe  C.  394  • 

'  Wilson  V.  Hart,  2  H.  cfc  M.  551,  L.  Partktt  v.   Salmon,  6  D.  JI.  &  G.  41  • 

B.  1  Ch.  App.  463.  Darlington  v.  Hamilton,  Kay,  550  Dart' 

*  Jaeks..n   ,<.  Howe,  2  Sim.  &  St.  472,  V.  <fe  !'.  75,  supra,  p.  91. 
475.     See  Jones  i;.    Smith,    1    I'll    255;  '' Fli;;l)t  r.  B.irton,  3  M.  <fe  CI.  282. 

Keesom  «.  Clarkson,  2  Ha.  173;  West  v.  *  Morley  v.  Claveriug,  29  Beuv.  84. 

Reid,   ib.   260;    Proctor  v.  Cooper,  2 


258  FRAUD  UrOK  THIRD  PARTIES. 

representation  long  before  the  time  he  did,  he  is  not  "bound  to 
make  inquiries,  until  there  is  something  to  raise  suspicion.^ 

Constructive  notice  only  operates  in  cases  affecting  title. 
A  mere  constructive  notice  of  circumstances  of  neo:lii>'ence  in 
the  mode  of  conducting  a  sale  is  entirely  collateral  to  any 
question  of  title.^ 

It  is  not  necessary  that  notice  should  be  brought  home  to 
the  party  interested  himself  It  is  enough,  if  it  is  brought 
home  to  his  agent,  solicitor,  or  counsel.^  There  is  no  distinc- 
tion in  point  of  legal  effect  between  personal  notice  to  the 
party  and  notice  affecting  him  through  the  medium  of  his 
agent.*  Notice  to  the  agent  is  notice  to  the  principal:  for 
upon  general  principles  of  public  policy  it  must  be  taken  for 
granted  that  the  principal  knows  whatever  the  agent  knows.^* 
As  a  general  rule,  the  princii^al  is  deemed  to  have  notice  of 
whatever  is  communicated  to  his  a^ent  whilst  acting  as  such  in 
the  transaction  to  which  the  communication  relates.^  The 
principal  or  client  is  fixed  with  the  knowledge  of  every  fact 
material  to  the  transaction  which  his  agent  or  solicitor  eithei* 
knows  or  has  imparted  to  him  in  the  course  of  his  employ- 
ment, and  which  it  was  his  duty  to  communicate,  whether  it 
be  communicated  or  not.'    The  rule  that  notice  to  an  agent  is 

'  Rawlins  v.  Wickham,  3  D.  <fe  J.  304.  ■*  Toulmin  v.  Steere,  3  Mer.  224. 

"  Borell  V.  Dann,  2  Ha.  440.  *  Bank  of  United  States  v.  Davies,  2 

^  Bath  and  Montagu's  Case,  3  Ch.  Ca.  Hill  (Amer.)  461. 

110;  Hrotlierton  t).  llatt,  2  Vern.  574;  °  Sandford     v.    Handy,    23     Wend. 

Maddox  )■.  Maddox,  1  Yes.  60;  Hughes  (Amer.)  208;  Bank  of  United  States  v. 

V.  Garner,  2  Y.  <fe  C.   328;    Archer  v.  Davies,  2  Hill  (Amer.),  452. 

Hudson,  15  L.  J,  Ch.  211,  '  Sheldon  v.  Cox,  Amb.  624;  Roddy 


*  Hovey  v.  Rlanchard,  19  N.  H.  145;  Ross  r.  Houston,  25  Miss.  591 ; 
Jones  V.  Bamford,  21  Iowa,  217;  Miller  v.  Fralej',  21  Ark.  22;  Walkers. 
Ayrcs,  1  Clarke,  449;  Ingalls  v.  Morgan,  10  N.  Y.  178;  Smith  v.  Oliver, 
31  Ala.  39;  Worden  v.  Williams,  24  111.  67 ;  Reed's  Appeal,  34  Penn.  207  ; 
Willis  V.  Vallette,  4  Met.  (Ky.)  186. 

Notice  to  a  man  is  not  notice  to  liis  wife.  Sponable  v.  Snyder,  7  nil], 
427. 


FEAUD  UPON  THIRD  PARTIES.  259 

notice  to  the  principal  applies  to  cases  where  the  principal  is 
an  infant.^ 

The  notice  which  affects  a  principal  or  client  through  his 
agent  or  solicitor  is  generally  treated  as  constructive  notice  ; 
but  inasmuch  as  the  principal  or  client  is  bound  by  the  notice 
whether  it  be  communicated  to  him  or  not,  and  is  not  pre- 
sumed to  have  the  knowledge,  merely  because  the  circum- 
stances of  the  case  put  him  on  inquiry,  such  notice  may  more 
properly  be  treated  as  actual  notice,  or  if  it  is  necessary  to 
make  a  distinction  between  the  knowledge  which  a  man  pos- 
sesses himself  and  that  which  is  known  to  his  agent  or  solici- 
tor, the  latter  may  be  called  imputed  knowledge.^ 

IS'otice  to  an  agent,  solicitor,  or  counsel  should,  in  order  to 
bind  a  principal  or  client,  be  notice  in  the  same  transaction.*  * 
But  the  rule  is  subject  to  a  qualification  where,  from  the  sur- 
rounding circumstances,  or  from  the  one  transaction  being  so 
closely  connected  with  another,  the  agent  or  solicitor  must  be 
presumed  to  have  remembered  tl)e  previous  one.  In  all  such 
cases  the  notice,  though  not  in  the  same  transaction,  is  never- 
theless binding.' f 

t).  Williams,  3  J.  <feL.  16;  Marjoribanks,  ♦Fitzgerald    v.    Fauconberg,    Fitrg. 

v.Hovenden.Dru.  11  ;  Cannock  r.  Jauu-  211  ;   Warrick  v.  Warrick,  15  Atk.  29u; 

cev  27  L  J   Ch.  57;  Espin  v.  I'ciiiber-  Worsley  v.  Lord  Scarborough,  lO.  392; 

ton,'  3  D.  &  J.  554;  Wyllie  v.  Pollen,  Ilicru  v.  Mill,  13  Yes.  114;   Ldgccumbe 

32  L.  J  Ch.  782  ;  Bonrsot  v.  Savage,  L.  v,  Stranger,  1  Jur.  400;  Fuller  v.  Ben- 

R,  2Eq.  134.     See  Taml.  176,  ;>(>•  Sir  nett,  2  Ha.  394;    Tylee  V.   Webb,  6 

J  Leach  M.  II.;  Spaight  v.   Cowne,  1  Beav.   552;    Finch  v.  Shaw   19   Beav. 

H  &  M.  359.  600 ;    Colyer   v.    Finch,   6   H.  L.  905. 

''  Touimin  v.  Steere,  3  Mer.  222.  See   Steed  r.  WHiitaker,   Barnard's   Ch. 

«  Sec  Touimin  v.  Steere,  3  Mer.  222.  220 ;  Hamilton  v.  Royse,  2  Sch.  &  Lef. 

*  3  D  &  J.  bM.  per  Lord  Chelmsford.  315  ;    Mountford  v.   Scott,  3  Madd.  34, 

See  Mayhew  v.  Fames,  3  B.  &  C.  601 ;  T.  &  R.  274. 

Cookson  «  Lee,  23  L.  J.  Ch.  473  ;  Eyre  ^Touimin    v.    Steere,    3   Mer.    222; 

V.    Burniester,    10   H.   L.   103.     Comp.  Hargreaves  w.  Roth  well,   1  Keen,  154; 

Wilde  V.  Gibson,  1  H.  L.  605.  Kixon  v.  Hamilton,  2  Dr.  &  Wal.  391 ; 


*  McCormick  v.  "Wlieclcr,  30  111.  114  ;  Bracken  v.  Miller,  4  W.  &  S.  102 ; 
Hood  V.  Fahnestock,  8  Watts,  483  ;  Grant  v.  Cole,  8  Ala.  519 ;  Lawrence 
«.  Tucker,  7  Greenl.  195;  Boyd  r.  Vanderkcmp,  1  Barb.  287. 

t  Hart  V.  Farmers',  &c.  Bank,  33  Vt.  252 ;  Blumeuthal  v.  Brainerd,  38 
Vt.  410  ;  The  Distilled  Spirits,  11  WaU.  35G. 


2G0  FKAUD  UPON  THIRD  PARTIES. 

The  rule  that  notice  to  an  agent  or  solicitor  is  notice  to  a 
principal  or  a  client,  applies  where  the  same  solicitor  or  agent  is 
employed  by  both  parties  to  the  transaction,^  or  is  himself  the 
vendor.^  The  mere  circumstance,  however,  of  there  being 
only  one  solicitor  in  the  business  does  not  necessarily  consti- 
tute him  the  solicitor  of  both  parties  so  as  to  affect  both  with 
notice.  It  does  not  follow  that  if  there  be  not  a  solicitor  em- 
ployed on  both  sides,  the  solicitor  who  does  act  is  the  solicitor 
of  both  parties.  To  have  this  effect,  there  must  be  a  consent 
to  accept  him  as  such,  or  something  equivalent  thereto.' 

The  rule  that  notice  to  a  solicitor  is  notice  to  the  client 
applies  only  as  between  parties  dealing  hostilely  with  each 
other.* 

It  is  not  every  description  of  knowledge  possessed  by  a 
solicitor  employed  in  any  particular  transaction  that  can  be 
treated  as  the  actual  knowledge  of  the  client.  All  matters 
affecting  the  title  to  property,  or  the  interests  of  other  persons 
in  connection  with  it,  all  circumstances  which  would  entitle 
parties  to  equitable  priorities,  or  change  the  character  of  rights, 

Fuller  V.  Bennett,  2  Ha.  394  ;    Gerard  v.  Frost,  3  M.  &  C.  670 ;    Slarjoribanka 

?).  OjRe'Uy,  3  Dr.  (fc  War.  414;  Marjori-  v.    Hovenden,  Dru.    11;    Robinson   v. 

banks  y.  lioveaden,  Dru.  11.    See  Edje-  Bri^^s,   1  Sm.  <t  G.  188;    Jie   Rorke'a 

cumbe    v.   Stran2:er,    1   Jur.   400;    Re  Estate,  13  Jr.  Ch.  371. 
Smallnmn's  Estate,  Ir.  L.  R.  2  Eq.  34.  '  Espia  v.  Pemberton,  4  Drew.  333,  3 

Comp.  Wilde  v.  Gibson,   1  H.  L.  605;  D.  &  J.  547;  Wythes  v.  Labouchere,  3 

but  see  Su^.  L.  P.  641.  D.    <fe   J.    594 ;    Lloyd  v.  Attwood,  ib. 

'  Le   Neve  v.  Le  Neve,  3  Atk.  646 ;  614 ;    Perry  v.   Holl,    2  D.  F.  &  J.  38. 

Toulmin  v.  Steere,  3  Mer.  210  ;  Fuller  v.  See  Le  Neve  v.  Le  Neve,  3  Atk.  646  ; 

Bennett,  2  Ha.  394;    Drvden  v.  Frost,  Kendall  v.  Hulls,  11  Jur.  864;  Plewitl 

3  M.  &  C.  670;    Roddy  V  Williams,  3  v.   Loosemore,    9  Ha.  449;    Cobbett  i; 

J.  <fe  L.  10;  Fraily.  Ellis,  16Beav.  350;  Brock,    20   Beav.    524;     Atterbury  v 

Tweedale  v.  Tweedale,   23   Beav.  341 ;  Wallis,  8  D.   M.   &  G.  454,  Su?.  V.  & 

Atterbury  v.  Wallis,  8  D.  M.  <fe  G.  454;  P.  772.    Comp.  Tweedale  v.  Tweedale, 

Ogilvie    V.    Jeaffreson,    2    Giff.    353 ;  23  Beav.  341. 

Spaiijht  V.   Cowne,    1    H.   &   M.   359 ;  *  Austin  v.  Tawney,  L.  R.  2  Ch.  App 

Boursot  71.  Savage,  L.  R.  2  Eq.  134.  143. 

'  Sheldon  v.  Cox,  Arab.  624 ;    Dryden 


Notice  communicatee!  to  an  agent  by  mere  rumor  and  talk  upon  the 
street  corners,  is  not  knowledge  that  will  bind  the  principal.  Keenan  v. 
Missouri,  &c.  Ins.  Co.  12  Iowa,  120. 


FRAUD  UPON  THIRD  PARTIES.  261 

wliich  depend  upon  want  of  notice,  if  known  to  the  solicitor, 
have  the  same  effect  as  if  actually  known  to  the  client.  But 
this  imputed  knowledge  will  not  extend  to  matters  which  have 
no  reference  to  rights  created  or  affected  by  the  transaction, 
but  which  merely  relate  to  the  motives  and  objects  of  the 
parties,  or  to  the  consideration  upon  which  the  matter  is 
founded.*  ]!^or  does  the  employment  of  a  solicitor  to  do  a 
mere  ministerial  act,  such  as  the  procuring  the  execution  of  a 
deed,  so  constitute  him  an  agent,  as  to  affect  his  employer  with 
notice  of  matters  within  his  knowledo^e.^ 

The  rule  that  notice  to  a  solicitor  is  notice  to  the  client 
applies,  notwithstanding  that  the  solicitor  may  be  perpetrating 
a  fraud  upon  the  client  in  the  transaction.^  The  commission 
of  a  fraud  being  beyond  the  scope  of  the  authority  of  a  soli- 
citor, the  fraud  of  a  solicitor  cannot  of  course  be  imputed  to 
the  client.^  But  the  fact  that  a  solicitor  may  be  committing  a 
fraud  in  relation  to  a  transaction,  in  which  he  is  employed,  can 
not  afford  any  reason  why  the  client  should  not  be  affected 
with  constructive  knowledge  of  the  facts.  The  constructive 
knowledge  of  all  the  facts  must  be  imputed  to  him  whether 
there  is  fraud  relating  to  the  transaction  or  not.  The  solicitor 
is  the  alter  ego  of  the  client.  The  client  stands  in  precisely 
the  same  situation  as  the  solicitor  does  in  the  transaction,  and 
therefore  the  knowledge  of  the  solicitor  is  the  knowledge  of 
the  client.  It  would  be  a  monstrous  injustice  that  the  client 
ehould  have  the  advantage  of  what  the  solicitor  knows  without 
the   disadvantage.  ^     In   determining .  the   equities,   however, 


'  Per  Lord  Chelmsford,  10  H.  L.  114.  v.  Ilovenden,  Dru.  11 ;  Kendall  w.  ITulls, 

»  Wyllie  V.  Pollen,  32  L.  J.  Ch.  782.  11  Jur.  864;    Eastham  v.  Wilkinson,  38 

'  Boursot  V.  Savage,  L.  R.  2  Eq.  134.  L.  T.  234 ;  Spaight  v.   Cowae,  1   II.  &l 

5ee  Roddy  t;.  Williams,  3  J.  &  L.  16.  M.   365;  Thompson  v.  Cartwright,   3;; 

*■  Kennedy  v.  Green,  3  M.  <fe  K.  699;  Beav.  185;  2  D.  J.  &  S.  10;  re  Rorke's 

Roddy  V.  Williams,  3  J.  <fe  L.  16;  Espin  Estite,  13  Ir.  Ch.  271. 

V.  Pemberton,  3  D.  <fr  J.  547;  Perry  v.  ^  Per  Kinderslev,  V.-C. ;    Boursot  v. 

HoU,  2  D.  F.  <fe  J.  38;  Ogilvie  v.  Jeaff-  Savage,  L.  R.  2  Eq.  134.     See  BjwIos 

^eson,  2  Giflf.  374.     See  Marjoribanks  v.  Stuart,  1  Sch.   «fe  Lcf.  222;  Nixou  t;. 


202  FRAUD  UPON  THIRD  PARTIES. 

between  parties  who  have  been  defrauded  by  a  common  soli- 
citor, the  court  looks  to  see  whether  there  has  been  anything 
in  the  transaction  calculated  to  put  either  of  the  parties  upon 
inquiry.  If  there  be  anything  in  the  case  calculated  to  excite 
suspicion,  or  to  put  either  of  the  parties  upon  inquiry,  and  he 
abstains  from  inquiry,  the  same  knowledge  will  be  imputed  to 
him  as  he  would  have  been  affected  with,  had  he  employed  an 
independent  solicitor.^ 

Notice  to  one  partner  of  a  trading  partnership  is  notice  to 
the  other  partners.^  *  A  partner,  however,  is  not  necessarily 
fixed  with  notice  of  the  contents  of  his  own  books.^ 

The  rule  that  notice  to  one  partner  is  notice  to  the  other 
partners  does  not  apply  to  the  case  of  corporations  or  joint- 
stock  companies.  ISTotice  on  the  part  of  a  share-holder,  or 
non-acting  director,  does  not  affect  the  whole  body ;  *  f  but 
notice  to  one  of  the  persons  legally  intrusted  with  the  proper 
business  to  which  the  notice  relates,  or  who  has  authority  to 
act  for  the  corporation  in  the  particular  matter  in  regard  to 
which  the  notice  is  given,  will  bind  the  corporation.^:};   Notice, 

Hamilton,  2  Dr.  &  Wal.  391 ;  Toulmin  2  D.  F.  &  J.   3S.     See  Greenslade  v. 

V.  Steere,  3  Mer.  222;   Hewitt  v.  Loose-  Dare,  20  Beav.  284;  Eastham  v.  Wil- 

more,  9  Ha.  449 ;  Atterbiiry  v.  Wallis,  kinson,  33  L.  T.  234. 

8  D.  M.  &  G.  457;  Rorke's  Estate,  13  '  Atkinson  v.  Macretb.  35   L.  J.  Ch. 

Ir.  Ch.  271;  Bank  of  United  States  v.  624;  Lindl.  on  Partnr.  294. 

Davies,  2  Hill  (Amer.),  461.  ^  See  Stewart's  Case,  L.  R.  1  Ch.  App. 

'  Kennedy  v.  Green,  3  M.  &  K.  699  ;  574. 

Frail  ?;.  Ellis,  16  Beav.  357 ;  Ogilvie  w.  "  Powles  v.   Page,   3   C.   B.    16;    re 

JeafFreson,   2  Giff.   374;    Atterbury  «.  Carew's  Estate,  31  Beav.  45. 

Wallis,  25  L.  J.  Ch.  794;  Perry  v.  HoU,  *  Worcester  Corn  Exchange  Co.,  3D. 


*  "Watson  r.  Wells,  5  Ct.  468;  Middleton  &c.  Bank  v.  Dubuque,  19 
Iowa,  4G7 ;  Bauglier  v.  Duphoin,  9  Gill,  314. 

t  Housatonic  Bank  v.  Martin,  1  Met.  294 ;  Custer  v.  Tompldns  County 
Bank,  9  Penn.  27;  Bank  of  Pittsburgh  v.  Whitehead,  10  Watts,  397; 
Union  Canal  Co.  v.  Lloyd,  4  W.  &  S.  393. 

I  Porter  v.  Bank  of  Rutland,  19  Vt.  410  ;  Fulton  Bank  v.  New  York 
&c.  Canal  Co.,  4  Paige,  127 ;  Banks  v.  Martin,  1  Met.  308 ;  Bank  of  United 
States  V.  Davis,  2  Hill,  451 ;  National  Bank  v.  Norton,  1  Hill,  575 ; 
Macbanics'  Bank  of  Alexandria  v.  Seton,  1  Pet.  299. 


FRAUD  UPON  THIRD  PAGTIES.  203 

however,  to  the  officer  of  a  corporation,  or  knowledge  obtained 
hy  him  whilst  not  engaged,  officially  in  the  business  of  the 
company,  is  inoperative  as  notice  to  the  latter,  -  Bnt  in  the 
case  of  a  joint  agency  (<?,  g.,  the  directors  of  a  company),  notice 
to  either  whilst  engaged  in  the  business  of  his  ageacy  is  notice 
to  the  principal.^ 

A  shareholder  in  a  company  formed  under  the  Companies' 
Act,  1862,  is  not  necessarily  fixed  with  a  knowledge  of  the 
contents  of  the  memorandum  or  articles  of  association  of  the 
company.^  But  he  must,  within  a  reasonable  time  after  the 
registration  of  the  memorandum  and  articles  of  association,  be 
presumed  to  acquaint  himself  with  their  contents.  After  the 
lapse  of  a  reasonable  time  he  cannot  be  heard  to  say  that  he 
had  no  knowledge  of  their  contents.  What  will  be  a  reason- 
able time  may  in  some  degree  vary  in  different  cases,  but  niust 
always  be  measured  with  reference  to  the  thing,  to  be  done.^ 

The  shareholders  in  a  company  are  not  bound  to  look  into 
the  management,  and  will  not  be  held  bound  to  have  notice  of 
everything  which  has  been  done  by  the  directors,  who  may  be 
assumed  by  the  shareholders  to  have  done  their  duty.*  But  if 
a  transaction  be  inserted  in  the  books  of  a  company,  the  share- 
holders will  be  fixed  with  notice  of  it.' 

The  registration  of  an  assurance  is  not  of  itself  notice.  A 
prior  equitable    incumbrance   will  not,   although   registered, 

M.   &  G.  183;   re  Carew's  Estate,  31  425;     Wilkinson's    Case,    re    Madrid 

Beav.  45  ;  Parsons  on  Contracts,  p.  65.  Lank,  ib.  540. 

'  Bank  of  United  States  v.  Davies,  2  *  Stanlicpe's  Case,  L.   R.  1  Ch.  App. 

Hill  (Amer.),  462.     But  see  Story  ou  161.     But  see  Walford  v.  Adie,  5  lla. 

Agency,  g§  140  a,  140  6.  112,  119. 

*  Stewart's  Case,  L.  R.   1  Ch.  App.  "  Spackman's  Case,  34  L.  J.  Ch.  321, 

e*?*.  325 ;  Stanhope's  Case,  L.  R.  1  Ch.  App. 

•Lawrence's  Case,  L.  R.  2  Ch.  App.  161. 


*  Lyne  v.  Bank  of  Kentucky,  5  J.  J  Marsh.  545 ;  General  Ins.  Co.  v. 
United  States  Ins.  Co.,  10  Md.  517;  United  States  Ins.  Co.  v.  Shriver,  3 
Md.  Ch.  381 ;  Washington  Bank  v.  Lewis,  22  Pick.  24 ;  FarrcU  Foundiy 
Co.  V.  Dart,  26  Ct.  37G. 


264  FEAUD  UrOX  third  TAPvTIES. 

affect  a  subsequent  purchaser  without  notice  who  has  obtained 
the  legal  estate.^  *     But  if  a  purchaser  search  the  register,  he 

'  Morecock  v.  Dickens,  Amb.    GY8 ;  Bnshell  v.  Bushell,  1  Sch.  &  Lef.  98. 


*  Tbe  registration  of  a  deed  is  constructive  notice  to  a  subsequen 
purcliaser.      Hughes  v.  Edwards,  9  Wheat.  489;   Lasselle  v.  Barnett, 
Blackf.  130 ;  Peters  v.  Goodrich,  3  Ct.  146 ;  Smith  v.  Prince,  14  Ct.  V 
Todd  V.  Benedict,  15  Iowa,  591 ;  Schutt  v.  Large,  6  Barb.  373. 

The  record  of  a  deed  not  required  by  hxw  to  be  recorded  is  n' 
structive  notice.     Villard  v.  Roberts,  1  Strobh.  Eq.  393 ;  Common 
1).  Rodes,  6  B.  Mon.  171;  Thomas  v.  Grand  Gulf  Bank,  9  Smed.  &  .x 
201 ;  Lewis  v.  Baird,  3  McLean,  56  ;  Reed  v.  Coale,  4  Ind.  283  ;  Bumham 
«.  Chandley,  15  Tex.  441 ;  Bossard  v.  White,  9  Rich's  Eq.  483  ;  Parrett  v. 
Shaubhut,  5  Minn.  323 ;  Galpin  v.  Abbott,  6  Mich.  17. 

The  record  of  a  deed  deficient  in  some  statutory  requirement  is  not 
constructive  notice  of  its  existence.  Carter  v.  Champion,  8  Ct.  549 ;  Sum- 
ner V.  Rhodes,  14  Ct.  135 ;  Moored.  Auditor,  3  Hen.  &  M.  235;  Doswell  ». 
Buchanan,  3  Leigh,  365  ;  Duphey  v.  Frenage,  5  Stew.  &  Port.  215  ;  Jolins 
V.  Reardon,  3  Md.  Ch.  57 ;  Choban  v.  Jones,  11  111  300 ;  Isham  v.  Benn- 
ington Iron  Co.,  19  Vt.  230 ;  Schultz  v.  Moore,  1  McLean,  520 ;  De  Witt 
V.  Moulton,  5  Shep.  418 ;  Gait  «.  Dibrell,  10  Yerg.  146 ;  Harper  v.  Reno,  1 
Freem.  Ch.  323. 

Record  is  constructive  notice  only  to  those  claiming  under  the  grantor 
by  whom  the  deed  was  made.  Til  ton  «.  Hunter,  11  Shep.  29  ;  Crockett  v. 
Maguire,  10  Mo.  34 ;  Lily  i).  Wolf,  10  Ohio,  83 ;  Stuyvesant  v.  Hall,  2 
Barb.  Ch.  158 ;  Murray  v.  Ballou,  1  Johns.  Ch.  574 ;  Keller  v.  Nutz,  5  8.  & 
R.  252;  Lightney  v.  Mooney,  10  Watts,  412;  Bates  ».  Norcross,  14  Pick. 
224 ;  Blake  v.  Graham,  6  Ohio  St.  R.  580. 

A  deed  properly  left  with  the  clerk  for  record  will  be  considered  as 
recorded  from  the  time  when  it  was  so  left,  although  it  has  been  lost  and 
never  recorded  through  the  negligence  of  the  clerk.  Beverly  v.  Ellis,  1 
Rand.  102  ;  Nichols  v.  Reynolds,  I  Angell,  30. 

An  incorrect  entry  in  the  index  book  will  not  impart  constructive 
notice  to  a  subsequent  purchaser.  Breed  «.  Conley,  14  Iowa,  269 ;  Gwynn 
«.  Turner,  18  Iowa,  1. 

Where  the  state  of  the  title  is  such  that  there  is  nothing  to  connect 
the  name  or  interests  of  a  third  person  with  the  property,  it  is  unreason- 
able to  impute  notice  of  the  interests  of  such  third  person  to  a  purchaser, 
for  no  ordinary  prudence  can  detect  it.  Lily  v.  Wolf,  10  Ohio,  83  ;  Mur- 
ray V.  Ballou,  1  Johns.  Ch.  566  ;  Sanger  v.  Craigar,  10  Vt.  555  ;  Jenning  v. 
Wood,  20  Ohio,  261 ;  Filton  r.  Pitneau,  14  Geo.  530. 

The  recording  of  a  deed  from  the  true  owner  in  his  right  name,  though 


PRATJD   UPON  THIRD  TAKTIES.  265 

Will  be  presumed  to  have  notice,  unless  tlie  presumption  can 
be  rebutted  bj  showing  that  the  search  was  made  for  a  period 
only  in  which  the  registered  deeds  are  not  inchided.^  There 
is  a  material  distinction  in  the  effect  of  resristration  between 
the  register  acts  of  Ireland  and  those  of  England.  Bv  the 
Irish  Act  6  Anne,  c.  2,  an  absolute  priority  is  expressly  given 
to  the  instrument  first  registered,  so  that  a  subsequent  pur- 
chaser, having  the  legal  estate,  though  he  has  not  notice  of  an 
equitable  estate  previously  registered,  will  be  bound  and  com- 
pelled to  give  effect  to  it.^ 

At  law,  notwithstanding  notice,  mere  priority  of  registra- 
tion absolutely  determines  the  right  to  the  property  as  between 
persons  claiming  under  adverse  registered  instruments,  pur- 
porting to  pass  the  legal  estate  ; '  but  in  equity,  notwithstand- 
ing the  stringent  language  of  the  Registration  Acts,  registra- 

'  Hodgson  V.  Dean,  2  Sim.  &  St.  221,  98 ;  Latouche  v.  Lord  Diinsany.  ib.  159. 

affd.     See  Sug.    V.   &   P.  7G1.     Comp.  160;   Drew  i'.  Lord  ^'orbury,  3  J.  &  L. 

Procter  v.  Cooper,  2  Drew.  1 ;  1  Jur.  N.  267  ;  Will  v.  Hill,  3  H.  L.  828. 

S.  149.  »  Doe  V.  Alsop,  5  B.  &  Aid.  .142. 

^  Bushell  ».   Bushell,   1   Sch.  &  Let 


diflferent  from  the  name  by  which  he  acquired  it,  is  constructive  notice  of 
such  deed.     Fallon  v.  Kehoe,  38  Cal.  44. 

When  there  is  a  material  variance  between  the  record  copy  and  the 
deed,  the  record  is  not  constructive  notice.  Frost  i;.  Beekman,  1  Johns. 
Ch  288;  Sawyer  v.  Crane,  10  Vt.  553  ;  Baldwin  v.  Marshall,  2  Humph. 
116;  Jennings  v.  Wood,  20  Ohio,  261 ;  Miller  e.  Bradford,  13  Iowa,  14. 

Fraud  can  not  be  inferred  from  mere  delay  in  putting  a  deed  on  rec- 
ord, if  the  grantee  has  used  all  the  dispatch  which  the  law  requires.  If 
subsequent  purchasers  without  notice  sustain  an  injury  within  the  time 
allowed  for  recording  a  deed,  the  injury  is  to  be  ascribed  to  the  law. 
Sherras  v.  Craig,  7  Cranch,  34. 

A  party  cannot  be  permitted  to  take  a  deed  from  another  for  his  own 
security,  and  leave  the  grantor  in  possession,  and  ostensibly  the  owner, 
and  withhold  it  from  record  for  an  indefinite  period,  renewing  it  periodi- 
cally, and  then  receive  the  benefit  of  it  by  placing  the  last  renewal  upon 
the  record.  All  the  renewals  are  mere  continuations  of  the  first  deed,  and 
the  time  for  recording  begins  to  run  from  its  date.  Gill  v.  Griffith,  2  Md. 
Ch.  270. 

18 


266  FRAUD  UPON   THIRD  PARTIES. 

tion  is  no  protection  against  an  unregistered  assurance  of  wliicb 
the  party  claiming  under  the  registered  instrument  had  notice 
prior  to  the  completion  of  his  purchase  or  security.'^  The  ob- 
ject of  the  Kegistration  Acts  being  to  give  notice,  the  evils 
against  which  those  statutes  intended  to  guard  do  not  exist 
where  a  man  has  notice  independently  of  the  registry.  If, 
therefore,  a  man  having  such  notice  seeks  to  defeat  a  prior 
charge  on  the  pretence  that  he  had  no  notice  by  means  of  the 
registry,  it  is  a  fraud  in  the  sense  of  a  court  of  equity.^*  The 
notice  must,  however,  be  clear  and  distinct.^  f  The  same  rules 
in  regard  to  notice  apply  to  cases  nuder  the  Kegistry  Acts  as 
to  all  other  cases.*  Constructive  notice  of  a  prior  unregistered 
assurance  affecting  lands  in  Middlesex,  is  as  effectual  as  actual 
notice.^ 


'Le  Neve  v.  Le  Neve,  3  Atk.  630;  'Wyntt  v.    Barwell,   19   Ves.   435; 

Eyre   v.   M'Dowell,   9  H.  L.   619 ;  Re  Chad  wick  v.  Turner,  L.  R.  1   Ch.  Ap. 

Korke's   Estate,   13  Ir.   Ch.    2*71.     See  310. 

Nixon  V.  Hamilton,  2  Dr.  &  Wal.  391 ;  *  Whitbread  v.  Jordan,  1  Y.  &  C.  303; 

Benham  v.  Keane,  IJ.  &  H.  685;  3  D.  Ford  v.  Wliite,  16  Beav.  120;  Wormald 

F.  <fe  J.  318.  V.  Maitland,  35  L.  J.  Ch.  69. 

"  Sheldon  v.  Cox,  2  Eden,  224;  Bush-  '  lb.     See  :sixon  v.  Hamilton,  2  Dr. 

ell  V.  Bushel),  1  Sch.  &  Lef.  102;  Eyre  &  Wal.  391;  Rochard  v.  Fulton,  IJ.  & 

«.  M'Dowell,  9   H.  L.   619,   646;  Chad-  L.  413. 
wick  V.  Turner,  L.  R.  1  Ch.  App.  310. 


*  Dunham  v.  Dey,  15  Johns.  5G8;  Lupton  v.  Cornell,  4  Johns.  Ch.  262; 
Ohio  Life  Ins.  Co.  v.  Ledyard,  8  Ala.  866;  Ingram -y.  Pliiiips,  3  Strobh. 
565  ;  Knotts  v.  Ginger,  4  Rich.  33  ;  Smith  v.  Hall,  28  Vt.  364;  Dickenson 
V.  Braden,  30  111.  279 ;  Doe  «.  Reed,  4  Scam.  117  ;  Warnock  v.  Wrightman, 
1  Brevard,  331;  Hudson  ®.  Warner,  2  H.  &  G.  415;  Morton®.  Robards,  4 
Dana,  258 ;  Jackson  v.  Leek,  19  Wend.  339. 

t  Taylor  i\  Heriot,  4  Dessau.  227 ;  Wallace  v.  Craps,  3  Strobh.  266 ; 
Porter  v.  Sevey,  43  Me.  519. 

Constructive  notice  is  not  sufficient.  The  notice  must  be  such  as  will, 
with  the  surrounding  circumstances,  affect  the  purchaser  with  fraud.  Dey 
v.  Dunham,  2  Johns.  Ch.  182  ;  City  Council  v.  Page,  Spear's  Ch.  159 ;  Spof- 
ford  1).  Weston,  29  Me.  140 ;  Hopping  v.  Burnam,  2  Iowa,  39;  contra,  New- 
man V.  Chapman,  2  Rand.  93  ;  Rogers  v.  Jones,  8  N.  11.  264 ;  Doe  v.  Reed, 
4  Scam.  117;  Parks®.  Willard,  1  Tex.  350. 

A  voUmtaiy  unrecorded  conveyance  is  valid  against  any  subsequent 
voluntary  conveyance  by  the  grantor.     Way  v.  Lyon,  3  Blackf.  76. 


MISCELLANEOUS    FRAUDS.  2G7 

The  same  principles  were  held  under  the  old  law  to  apply 
to  the  case  of  a  purchaser  with  notice  of  undocketed  judg- 
ments,* but  under  the  new  law  a  purchaser  even  with  notice  is 
not  bound  by  a  judgment,  unless  it  has  been  duly  registered  in 
the  Common  Pleas  ;^  nor  will  notice  of  a  registered  judgment 
affect  a  purchaser,  unless  it  has  been  re-registered  in  due  time.^ 
As  between  judgment  creditors  notice  is  not  material.* 

Purchasers  of  lands  in  Middlesex  are  bound  by  notice  of 
unregistered  or  undocketed  judgments,  but  as  between  judg- 
ment creditors  notice  is  not  material.  A  prior  judgment  cred- 
itor has  no  equity  against  a  subsequent  judgment  creditor,  who 
has  registered  with  notice.' 

The  registration  of  a  judgment  is  not  notice,®  unless  a 
search  has  been  made  for  judgments,  in  which  case  notice  will 
be  presumed;'  but  it  seems  that  a  title  depending  on  the  fact 
of  the  vendor  having  been  a  purchaser  without  notice  of  a 
registered  judgment  cannot  be  forced  on  a  purchaser.^ 


SECTION  v.— MISCELLANEOUS   FRAUDS. 
FRAUD   UPON  POWERS. 

A  class  of  frauds  against  which  courts  of  equity  will  re- 
lieve, are  fi-auds  upon  powers. 

There  is  a  fraud  upon  a  power  if  a  man,  having  a  power  of 
appointment,  corruptly  exercises  the  power  with  a  view  to  his 
own  personal  beneUt  and  advantage.     An  appointment  under 

*  Davis  V.  Lord  Stratlimore,  16  Ves.  D.  F.  &  J.  318.  See  Evana  t.  Williams 
419;  Sug.  V.  <fe  F.  521,  34  L.  J.  Ch.  485. 

*  Sug.  V.  &  P.  53.3.  ^  Eenham  v.  Keane,  3  D.  F.  &  J.  318 

*  18  Vict.  c.  15,  §  3.  See  Beavan  v.  *  Clmrcliill  v.  Grove,  1  Ch.  Ca.  35; 
Lord  Oxford,  6  D.  M.  &  G.  492;  Shaw  Freem.  Ch  Ca.  176;  Lane  v.  Jackson 
V.    Neule,    6    H.    L.    584;    Benhara    ?;.  20  Beav.  535. 

Keane,   1  J.  <fe  II.   685 ;  3  D.  F.  &  J.  '  Proctor  v.  Cooper,   2   Drew.    1  •  1 

818;  Evans  v.  Williams,  34  L.  J.  Ch.  Jur.  N.  S.  149. 

485.  8  Freer  v.  Hesse,  4  D.  M.  tfc  G.  495. 

*  Benham  v.  Keane,  1  J.  A  U.  685;  3 


268  MISCELLANEOUS"  FRAUDS. 

a  power,  accordingly,  will  be  set  aside  in  equity  if  it  appear 
that  tlie  person  in  whose  favor  the  power  has  been  exercised 
has  agreed  or  stipulated  to  give  the  owner  of  the  power  some 
benefit  or  advantage  in  the  event  of  the  power  being  exercised 
in  his  favor,^  or  if  the  circumstances  of  the  case  attending  the 
execution  of  the  power  are  such  as  to  show  conclusively  that 
the  appointment  was  made  with  a  view  to  some  profit  ulti- 
mately accruing  to  the  owner  of  the  power ;  ^  as,  for  instance, 
where  a  parent,  having  a  power  of  appointment  among  child- 
ren, exercises  it  in  favor  of  a  son,  a  lunatic,  in  very  bad  health 
and  likely  to  die,  in  which  event  the  parent  would,  of  course, 
become  entitled  to  the  fund,  as  the  personal  representative  of 
the  son.^  So  also,  and  for  the  same  reason,  where  a  parent 
having  power  to  raise  portions  for  children,  appointed  a  portion 
to  a  child  long  before  it  was  required,  and  the  child  died 
shortly  afterward,  the  appointment  was  held  invalid.*  So 
also  an  appointment  by  a  parent  in  favor  of  a  daughter,  with  a 
view  to  obtaining  the  benefit  of  the  fund  so  appointed,  through 
the  exercise  of  undue  parental  influence  over  her,  would  be 
held  invalid.' 

There  is  a  very  material  distinction  between  powers  to  ap- 
point portions  to  be  raised  for  children,  and  powers  to  appoint 
to  children  a  fund  actually  set  apart  or  provided.  Under  a 
power  of  the  former  class,  an  appointment  whereby  a  portion 
is  raised  for  a  child  before  it  is  wanted,  carries  with  itself  the 
evidence  of  fraud,  even  though  the  terms  of  the  power  author- 
ize the  parent  to  raise  the  portion  whenever  he  thinks  proper.^ 


1  Lane  v.  Page,   Ambl  233  ;  Palmer  '  Wellesley  v.  Mornington,  2  K.  <fe  J. 

V.  Wheeler,  2  Ba.  &  Be.  31 ;  Farmer  v.  143. 

Martin,  2  Sim.   511;  Arnold  v.   Hard-  ■*  Lord  Hinchinbrooke  v.  Seymour,  1 

wick,  7  Sim.  343  ;  Jackson  v.  Jackson,  7  Bro.  C.  C.   395  ;  Wellesley  v.  Morning- 

Cl.  &  Fin.  977  ;  Rowley  v.  Rowley,  Kay,  ton,  2  K.  &  J.  143. 

242 ;  Reid  v.  Rekl,  25"^  Beav.  478.     See  '  Re  Marsden's  Trusts,  4  Drew.  601. 

Askham  v.  Barber,  17  Beav.  44.  '  Lord  Hinchinbrooke  v.  Seymour,  1 

""  Ilumpbrey  v.  Oliver,  28  L.  J.  Cb.  Bro.  C.  C.  395. 
i06 


MISCELLANEOUS    FEAUDS.  209 

TJuder  a  power  of  the  latter  class,  however,  shares  may  be  ap- 
pointed to  a  child  so  as  to  vest  long  before  they  are  required. 
A  hond  fide  appointment  to  a  child  of  very  tender  age,  and  in 
good  health,  of  an  estate  or  fund  which  has  been  previously  set 
apart  or  provided  for  the  benefit  of  children,  is  in  itself  no 
sio-n  of  fraud.  It  is  of  no  consequence  that  the  child  may  die 
shortly  afterward,  if  it  was  in  good  health  at  the  time  the 
power  was  exercised.  If  the  power  be  in  other  respects  well 
executed,  it  is  immaterial  that  it  may  have  in  fact  been  exer- 
cised with  the  object  of  providing  that  in  any  event  the  per- 
sons entitled  in  remainder  on  failure  of  children  shall  not  take 
the  estate  or,  fund.^ 

If  a  person  be  the  only  child  who  has  been  kind  to  a  parent 
in  distress,  there  is  no  fraud  if  the  parent  exercises  a  power  of 
appointment  in  his  favor.'  JSTor  is  there  fraud  if  a  parent  exer- 
cises a  power  of  appointment  in  favor  of  two  of  his  sons,  to 
enable  them  to  embark  in  business,  and  then,  at  their  request, 
becomes  a  partner  with  them  in  the  business,  there  being  no 
evidence  to  prove  any  bargain  between  them  in  the  event  of 
his  exercising  the  power  in  a  particular  way.^  An  appoint- 
ment, however,  to  one  of  several  objects  of  a  power  in  pay- 
ment of  a  debt  due  to  him  from  the  appointer  is  bad.* 

Although  an  appointment  by  a  parent  in  favor  of  a  child, 
over  whom  he  exercises  undue  influence,  cannot  be  supported,^ 
it  is  otherwise  if  the  exercise  of  undue  influence  be  disproved.' 
A  child  to  whom  property  has  been  appointed  by  a  j^arent 
may,  in  such  a  case,  give  the  parent  a  benefit  or  advantage 
in  the  property  so  appointed.' 

'  Butcher  v.  Butcher,   14  Sim.  444 ;  '  Re  Marsden's  Trusts,  4  Drew.  fiOl. 

Feaion   v.    Desbrisay,    14    Bcav.    635 ;  See  Topliara  v.  Duke  of  I'urtlunil,  1  D. 

Beere  v.  lloffmeister,  23  Beav.  101.  J.  &  8.  517. 

^  Wheeler  v.  Palmer,  2  Ba.  &  Be.  31.  °  See  mpra.  p.  181. 

'  Cockcroft  V.  Sutcliflfe,  2  Jur.  N.  S.  '  Davis  v.  Iphill,  1  Sw.  136;  Warde 

823.  V.  Dickson,  5  Jur.  JN.  S.  699. 

*  Reid  V.   Reid,   25  Beav.  478.     See 
Beddocs  V.  Pugh,  26  Beav.  411. 


270  MISCELLANEOUS    FEAUDS. 

In  an  arrano-ement  settling  tlie  interests  of  all  the  branches 
of  a  family,  children  may  contract  with  each  other  to  give 
to  a  parent,  who  had  power  to  distribute  property  among 
them,  some  advantage  which  the  parent,  without  their  contract 
with  each  other,  could  not  have.* 

In  order,  however,  to  constitute  a  fraud  upon  a  power,  it  is 
not  necessary  that  the  object  of  the  exercise  of  the  power 
should  be  the  personal  benefit  or  advantage  of  the  donee  of 
the  power.  If  the  design  of  the  donee  in  exercising  the 
power  is  to  confer  a  benefit,  not  upon  himself  actually,  but 
upon  some  other  person  not  being  an  object  of  the  power, 
that  motive  just  as  much  interferes  with  and  defeats  the 
purpose  for  which  the  power  was  created  as  if  it  had  been 
for  the  personal  benefit  of  the  donee  himself.  If  the  donee 
of  a  power  of  appointment  exercises  tlie  power  in  favor  of 
one  of  several  objects  of  the  power,  with  a  view  to  the  benefit 
of  a  stranger,  the  appointment  is  fraudulent  and  void,  even 
although  the  motive  of  the  donee  is  not  morally  wrong.^  A 
man  who  takes  property  absolutely  under  an  appointment, 
may  do  with  the  pi'operty  so  appointed  as  he  pleases,  and  may 
settle  it  on  persons  who  are  not  objects  of  the  power ; '  but 
there  is  a  fraud  upon  a  power  if  an  appointment  be  made  upon 
a  bargain  for  the  benefit  of  persons  who  are  not  objects  of  the 
power.*  The  appointment,  accordingly,  of  a  portion  of  a  fund 
to  a  daughter,  for  the  purpose  of  paying  her  husband's  debts, 
was  held  void."  So  also,  where  a  married  woman,  having  a 
power  to  appoint  a  fund  of  which  she  received  the  income  for 
her  life,  appointed  the  whole  fund  at  her  death  absolutely  in 
favor  of  her  daughter,  in  order  that  thereout  the  daughter 
should  benefit  the  father,  the  appointment  was  held  invalid.® 

'  Davis  ?'.  Uphill,  1  Sw.  136.  ^  Birley    v.    Eirley,    ib.;    Pryor    v. 

-  lie  IMarsden's  Trusts,  4  Drew.  601.  I'ryor,  2  D.  J.  <t  S.  205. 
»  Routledge  v.  Dorrill,  2  Ves.  Jr.  357.  '  liauking  v.  Barnes,  12  W.  R.  568. 

See  Birlev  v.  Birley,  25  Beav.  21)9.  '  He  Marsden's  Trusts,  4  Drew.  601. 


MISCELLAXEOUS    FKAUDS.  271 

The  principle  has  been  held  even  to  apply  to  a  case  where  an 
arrangement  was  entered  into  between  the  original  donor  and 
creator  of  the  power  and  any  of  the  objects  of  the  power,  to 
benefit  persons  other  than  those  within  the  power.''  The 
principle  that  the  donee  of  a  power  may  not  appoint  to  a  per- 
son who  is  not  an  object  of  the  power  applies  even  although 
the  appointee  is  not  privy  to  the  intentions  of  the  donee  of 
the  power.  The  design  to  defeat  the  purpose  for  which  the 
power  was  created  will  stand  just  the  same  whether  the 
appointee  was  aware  of  it  or  not.^  Where,  accordingly,  a 
married  woman,  having  a  power  to  appoint  a  fund  of  which  she 
received  the- income  for  her  life  among  her  children,  appointed 
the  whole  fund  at  her  death  in  favor  of  her  daughter,  in  order 
that  thereout  the  daughter  should  benefit  her  father,  relying 
on  the  influence  which  the  father  would  have  over  her  to  carry 
out  the  secret  arrangement,  the  appointment  was  held  invalid, 
although  the  daughter  was  not  informed  of  the  mother's  inten- 
tion until  after  her  mother's  death.' 

Although  children  may  contract  with  each  other  to  give 
to  a  parent,  who  has  powder  to  distribute  property  among  them, 
some  advantage  which  the  parent,  without  their  contract  with 
each  other,  would  not  have,*  a  transaction  of  the  sort  cannot 
be  upheld  if,  taken  as  a  whole,  it  appears  not  to  be  a  l)ona  fide 
family  arrangement,  but  to  have  been  entered  into  in  fraud  of 
the  power,  for  the  purpose  of  giving  a  benefit  to  a  person  who 
was  by  the  donor  excluded  from  being  an  appointee  or  from 
deriving  any  advantage  from  the  exercise  of  the  power.' 

There  is  a  fraud  upon  a  power,  not  only  ^vhere  it  is  exer- 
cised in  favor  of  persons  who  are  not  the  proper  objects  of  the 
power,  but  also  where  it  is  exercised  for  purposes  foreign  to  those 


'  Lee  V.  Fftrnie,  1  Beav.  483.  *  Davis  v.  Uphill,  1  Sw.  136. 

"  Re  Marsden's  Trusts,  4  DrcTV.  001.  *  Agassiz  v.  bquire,  18  Beav.  431. 

*  Ih.     (See  Ranking  v.  Barnes,  12  W. 
R.  508. 


272  MISCELLANEOUS    EKAUDS. 

for  wliicli  the  power  was  created.^  The  donee  of  the  power  shall, 
at  the  time  of  the  exercise  of  the  power,  and  for  any  purpose  for 
which  it  is  used,  act  with  good  faith  and  sincerity,  and  with  an 
entire  and  single  view  to  the  real  pui-pose  and  object  of  the 
power,  and  not  for  the  purpose  of  accomplishing  or  carrying  into 
effect  any  object  which  is  beyond  the  purpose  and  intent  of 
the  power.2  It  is  accordingly,  a  fraud  upon  a  power,  if  a  man 
having  a  power  to  appoint  among  two  sisters  appoints  the 
whole  to  one  of  them,  it  being  understood  that  she  was  only 
to  receive  one  moiety  of  the  fund  to  her  own  use,  and  was  to 
allow  the  other  to  accumulate,  subject  to  some  future  arrange- 
ment.^ In  determining  whether  there  is  a  fraud  upon  a  power, 
the  court  looks  to  the  purpose  with  which  the  power  was  exer- 
cised.* In  Scroggs  v.  Scroggs,^  the  consent  of  a  trustee  was 
necessary  to  the  exercise  of  a  power,  and  the  donee  of  the 
power  procured  the  trustee's  consent  by  a  false  representation, 
to  which  the  appointee  does  not  appear  to  have  been  in  any 
way  a  party ;  yet  the  court  set  aside  the  appointment.* 

If  there  be  a  fraudulent  arrangement  between  the  donee  of 
a  power  and  the  appointee,  the  bad  purpose  will,  in  general, 
vitiate  the  appointment  in  toio,  and  not  merely  the  part  to 
which  the  fraud  extends.'  Appointments  to  children,  accord- 
ingly, in  part  fraudulent,  have  almost  always  been  avoided 
altogether.^  In  cases,  however,  where  the  evidence  enables 
the  court  to  distinguish  what  is  attributable  to  an  authorized 
from  what  is  attributable  to  an  unauthorized  purpose,  the  bad 
purpose  wiU  not  affect  the  whole  appointment.^  So  when 
there  is  a  sum  of  money  to  be   appointed  among   children, 

'  Tophnra  v.  Duke  of  Portland,  ID,  '  Daubeny  v.  Cockburn,  1  Mer.  626. 

J.  <fe  S   570.  *   Ih.     Fanner  >•.  Marlin,  2  Siin.  511  ; 

^  Duke  of  Tortland  v.  Topham,  11  H.  Arnold  v.  Hardwicke,  7  Sim.  343.     See 

L.  54,  j/er  Lord  Westbury.  Rowley  v.  Rowley,  Kay.  259. 

»  Jb.  32.  °  Topl)am  v.  Duke  of  Portland,  1  D. 

*  Topham  v.  Duke  of  Portland,  ID.  J.  <fe  S.   572 ,    per  Turner,   L.  J.     See 
J.  <fe  S.  570.  Carver    v.    Richards,    27    Beav.    488 ; 

*  Ambl.  272.  Ranking  v.  Barnes,  12  W.  R.  5C5. 

*  Fer  Turner,  L.  J.,  1  D.  J.  &  S.  570. 


i 


MISCELLANEOUS^    FRAUDS,  273 

althougli  an  appointment  to  one  cLild  may  be  void  on  account 
of  a  corrupt  agreement,  an  apj)ointment  to  another  child, 
although  by  a  contemporaneous  deed,  if  it  can  be  severed 
from  the  previous  appointment  so  as  not  to  form  part  of  the 
same  transaction,  will  be  valid.-^ 

Although  in  the  case  of  appointments  to  children,  a  fraud- 
ulent arrangement  between  the  donee  of  the  power  and  the 
appointee  will,  in  general,  vitiate  the  whole  appointment,  a 
different  doctrine  has  been  maintained  in  the  case  of  appoint- 
ments by  way  of  jointure.  The  appointment  will,  in  such 
cases,  be  only  vitiated  in  the  extent  to  which  it  is  affected  by 
the  fraud.^    , 

It  was  formerly  held  that  illusory  appointments  under  a 
power  were  void  in  equity,  e.  g.,  appointments  of  a  nominal 
instead  of  a  substantial  share  to  one  of  the  members  of  a  class 
where  power  was  given  to  appoint  among  them  all.  An 
appointment  of  this  kind  was  always  valid  at  law,  and  it  would 
perhaps  be  difficult  to  reconcile  with  principle  its  avoidance  in 
equity.     The  doctrine  has  been  abolished  by  statute.^ 

FRAUD  IN  THE  PREVENTION"  BY  UNDUE  3HEANS  OF  ACTS  TO 
BE  DONE  FOR  THE  BENEFIT  OF  THIRD  PARTIES. 

There  is  fraud  against  which  a  court  of  equity  will  relieve, 
if  a  man  be  prevented  by  undue  means  from  doiiig  an  act  for 
the  benefit  of  third  parties.  If  a  man  be  prevented  by  duress, 
undue  influence,  or  other  undue  means,  from  executing  an 
instrument,  the  court  will  treat  it  as  if  it  had  been  executed.* 
"When,  for  instance,  a  tenant  in  tail,  meaning  to  suffer  a 
recovery,  was  prevented  on  his  deathbed  from  sufferijig  it,  by 
the  fraud  of  the  person  whose  wife  was  entitled  in  remainder, 

*  Rowley  v.  Rowley,  Kay,  242.     See  »  11  Geo.   IV,  &  1  Wm.  IV,  c.  46. 

Harrison  v.  Randall,  9  Ila.  397.  Butcher  v.  Butcher,  9  Yes.  382. 

'  Lane  v.  Pa^e,  Arab.  2:53  ;  Alevn  v.  *  Middletou  v.  Middletou,  1  J.  &  W, 

Belcher,   1    Eden,  138,  t-ug.  Pow."  610.  96. 
See  llovvley  v.  Rowley,  Kay,  239. 


274  MISCELLANEOUS    FRAUDS. 

it  was  held  that  the  estate  ought  to  be  held  as  if  the  recovery 
had  been  perfected,  though  even  in  favor  of  a  volunteer,  and 
against  one  not  a  party  to  the  fraud.^  So  also  when  a  pei-son 
interested  in  the  non -execution  of  a  power  has  the  deed 
creating  the  power  in  his  custody,  and  the  donee  of  the  power, 
wishing  to  execute  it,  sends  for  tlie  deed,  which  the  party 
refuses  to  deliver,  and  thereupon  the  donee  does  an  act  with 
an  intent  to  execute  the  power,  equity  will  uphold  the 
execution,  although  defective  by  reason  of  the  fraud  in  the 
person  who  was  to  have  the  benefit  of  the  original  settlement.^ 
But  the  mere  refusal  or  neglect  of  an  attorney  with  whom  a 
deed  containing  a  power  has  been  deposited,  to  deliver  it  up 
to  the  donee  of  the  power,  in  the  absence  of  fraud,  is  no 
ground  for  relief  against  informality.*  Equity  would  extend 
the  relief  to  a  case  wdiere  a  wife,  having  a  power  of  revocation 
over  an  estate  vested  in  her  husband,  is  desirous  to  exercise  it ; 
but  the  husband  hinders  anybody  from  coming  to  her,  or 
prevents  the  execution,  or  obstructs  the  engrossing  of  the 
deed  of  revocation.^ 

The  principle  applies  to  cases  where  a  man  has  been 
induced  by  false  promises  to  abstain  from  doing  an  act  for 
the  benefit  of  third  parties.  If,  for  example,  a  testator  be 
induced  to  omit  the  insertion  in  his  will  of  a  formal  provision 
for  any  intended  object  of  his  bounty,  upon  the  faith  of  assur- 
ances given  by  his  heir  or  other  person,  who  would  take  hir, 
property  in  the  event  of  his  omitting  to  insert  the  particular 
bequest  in  his  will,  that  his,  the  testator's,  wishes  shall  be 
executed  as  punctually  and  fully  as  if  the  bequest  were 
formally  made,  this  promise  and  undertaking  will  raise  a  trust, 


>  Luttrell  V.  Olmius,  cit.  11  Yes.  638 ;  '  Buckell  v.  Blenkhorn,  5  Ha.  131. 

14  Ves.  290;  1  J.  &  W.  96.  *  Pig^ott  v.  Penrice,  Com.  250  ;  Free. 

"  See  3  Ch.  Ca  67,  83,  84,  89,  93, 108,  Ch.  471 ;  Vane  v.  Fletcher,  1  P.  "Wms. 

122;  Ward  v.  Booth,  cit.  3  Ch.  Ca.  69.  354;   Segrave  v.  Kirwan,  Beatt.   157; 

See  Fort.  383;  Buckell  t'.  Blenkhorn,  6  Bulkley  w.Willford,  2  CI.  &  Fin.  102; 

Ha.  131 ;  West  v.  Ra}-,  Kay,  385.  Naaney  v.  Williams,  22  Beav.  452. 


MISCELLANEOUS    FRAUDS.  275 

which,  though  not  avaOable  at  law,  will  be  enforced  in  equity 
on  the  ground  of  fraud,^  *  So,  also,  if  a  father  devises  an 
estate  to  one  son,  who  engages,  if  the  estate  is  devised  to  him, 
to  give  a  certain  amount  of  money  to  another  son,  the  promise 
will  be  enforced  in  equity.^  An  engagement  of  the  kind 
alluded  to  may  be  entered  into  not  only  by  words,  but  by 
silent  assent  to  such  a  proposed  undertaking,  which  will  equally 
raise  a  trust.^ 

FRAUDULENT    SUPPRESSION"    OR    DESTRUCTION    OF  DEEDS 

AND   OTHER  INSTRU:MENTS    IN  VIOLATION  OF   OR 

INJURY  TO  THE   RIGHTS  OF   OTHERS. 

If  an  heir  should  suppress  deeds,  wills,  &c.,  in  order  to 
Tsrevent  another  party,  as  grantee  or  devisee,  from  obtaining 
the  estate  vested  in  him  thereby,  courts  of  equity,  upon  due 
proof  by  other  evidence,  would  grant  relief,  and  perpetuate 
the  possession  and  enjoyment  of  the  estate  in  such  grantee  or 
devisee.*  If  the  contents  of  a  suppressed  or  destroyed  instru- 
ment are  proved,  the  party  will  receive  the  same  benefit  as  if 
the  instrument  were  produced.^ 

Where  there  has  been  a  spoliation  or  suppression  of  instru- 
ments, which  might  have  thrown  light  upon  a  suit,  everything 
will   be   presumed   against   the   party  by  whose   agent   such 

'  Dutton  V.  Pool,  1  Vent.  318  ;  Thynn  '  Sticldand  v.  Aldridq:?,  9  Ves.  519. 

t*.  Tliynn,  I  Vern.  296  ;  Sellack  v.  Har-  '  Byrne  v.  Godfrey,  4  Ves.  10;  Paine 

ris,  5  Viii.  Ab  521  ;  DLveninli  u.  IJa'mes,  v.  Hall,  18  Ves.  475. 
Free.  Ch.   3 ;  Oldham  v.  Lit;  hfield,  2  *  Hunt   v.   Mattliews.   1  Vern.  408  ; 

Vern.  5UG ;  2  Freein.  Cb    284;  fbam-  Wardoiir  i».  Berisford,  ib.  452,  cit.  2  P. 

berldne  ?'.  Chamberlaine,  2  Froem.  Ch.  AVm.  748,  749 ;  Dalston  v.  Coatswortb, 

34;  Keech  v.  Kenninate,  Anib.  07  ;  Bar-  1  P.  Wms.  731  ;  Finch  v.  Newnham,  2 

row  V.  (Irecnough,  3  Ves  153;   Mestaer  Vern.  210;  Barnesley  '■.  Pi)\vell,  1  Ves. 

V.  Gillcs]iic,  11  Ves.  038;  Chamberlaine  289  ;  Tucker  v.  Phip'ps,  3  Atk.  360.  See 

V.  Aii-iir,  2  V.  &  B.  262 ;  Podniore  c  Gun-  Hornby  v.  Mateham,  16  Sim.  325. 
ninsj,  7  Sim.  660;  Russell  t;.  Jackson,  10  'Saltern   v.    Meliiuish,     Amb.    247; 

Ha.  213.  Cowper  v.  Cowper,  2  P.  Wms.  719. 


*  In  no  case  has  a  party  been  successful  when  a  reasonable  doubt  in 
regard  to  the  promise  could  I)e  entertained.  Gaither  v.  Gailher,  3  Md.  Ch. 
158;  Richardson  v.  Adams,  10  Yerg.  273. 


270  MISCELLANEOUS    FRAUDS. 

spoliation  and  suppression  have  been  practiced,  and  every 
presumption  will  be  made  in  favor  of  the  j^rima  facie  rights 
of  the  other  party.^ 

Prima  facie  the  cancellation  of  a  deed  is  evidence  of  its 
discharge,  but  in  a  court  of  equity  it  is  open  to  the  party 
claiming  under  the  deed  to  show  that  it  was  cancelled  by 
fraud,  mistake,  or  accident.  Where  the  deed  has  always  been 
in  the  hands  of  the  party  beneficially  interested  under  it, 
should  it  appear  to  have  been  cancelled,  the  proof  that  this 
was  done  by  fraud  would  rest  with  that  party ;  but  where  the 
deed  has  constantly  remained  in  the  power  of  the  maker 
thereof,  or  has  been  deposited  by  him  with  a  person  of  his 
own  selection,  circumstances  may  throw  upon  the  maker  of  the 
deed  the  onus  of  showing  not  only  that  such  deed  is  cancelled, 
but  that  the  obligation  it  imposed  has  been  duly  discharged 
and  satisfied.' 

FRAUD    m    SETTING    UP  AN    INSTRUMENT    OBTAINED    FOR 
ONE  PURPOSE  FOR  ANOTHER  PURPOSE. 

Where  a  man  obtains  an  instrument  or  conveyance  from 
another,  in  order  to  answer  one  particular  purpose,  but  after- 
wards makes  use  of  it  for  another,  a  court  of  equity  will 
relieve  under  the  head  of  fraud.  It  is  immaterial  that  the 
conveyance  may  be  perfected  by  act  of  record.^  Where, 
accordingly,  a  father,  who  was  a  tenant  for  life  of  real  estate, 
fearing  that  the  husband  of  his  daughter,  who  was  tenant  in 
tail  of  the  property,  would  waste  the  property,  induced  him 
and  the  daughter  to  join  in  a  recovery,  with  a  view  to  protect- 
ing the  property  from  his  creditors,  and  the  property  was 
conveyed  to  the  father  for  a  mere  nominal  sum,  the  recovery 

»  Bowles  V.  Stuart,  1  Sch.  <fe  Lef.  222;  «  Sluysken  v.  Hunter,  1  Mer.  46. 

Eyton   V     Eyton,    1    Bro.  P.  C.    153;  «  Young  «;.  Peachey,  2  Atk.  256. 

llampcleri  v.  iJaiii|)den,  ih.  25:i ;   Sepal- 
ino  V.  Twitty,  teel.  Ca.  Ch.  76, 


MISCELLANEOUS    FKAUDS.  277 

■was  set  aside  at  tlie  suit  of  the  assignees  in  insolvency  of  his 
6on-in-law.^ 

FRAUD   IN   ASSIGNMENTS,    BY   ASSIGNEES,   ETC. 

An  assignment  by  the  assignee  of  a  lease  or  term  is  not  a 
franclnlent  assignment.  If  a  man  assign  nominally  only, 
retaining  the  beneficial  enjoyment,  it  is  fraudulent,  because 
while  he  assumes  to  one  thing,  he  really  does  another.  He 
retains  the  benefit,  and,  by  a  false  act,  endeavors  to  get  rid  of 
the  burthen.  But  if  he  assigns  really,  getting  rid  of  the 
burthen,  and  giving  up  really  the  benefit  also  (if  any)  to  his 
assignee,  it  is  not  a  fraudulent  act.  His  motive  for  parting 
with  it.  Or  the  other's  motive  for  receiving  it,  are  not  enough 
to  make  it  fraudulent,  if  the  act  done  be  a  real  act,  intended 
really  to  operate  as  it  appears  to  do.  The  assignment  even  to 
a  beggar  is  not  fraudulent,  although,  made  in  order  to  avoid 
payment  of  a  sum  of  money  chargeable  on  the  property  under 
the  original  agreement.  The  motive  which  induces  the  as- 
signee to  assign  over  has  no  bearing  upon  the  question 
whether  the  assignment  be  fraudulent  or  not,  provided  the 
assignment  is  real  and  intended  to  operate,  as  it  appears  to 
operate.* 

Where  the  assignee  of  a  lease,  subject  to  a  mortgage,  in- 
duced the  lessor,  a  friend  and  client,  to  take  advantage  of  a 
forfeiture,  which  was  committed  by  the  lessee  expressly  for 
that  purpose,  and,  after  the  forfeiture  was  complete,  induced 
the  lessor  to  grant  him  a  new  lease  of  the  property  on  the 
same  terms,  the  court  declared  that  the  new  lease  was  subject 
to  the  mortgage.' 

'  Young  V.  Peachy,  2  Atk.  256,     See  '  Taylor  v.  Shum,  1  B.  <fe  P.  21 ;  0ns- 

Wilkinson  v.  Biayiield.  2  Venn.    307;  low  ?'.  Corrie,   2  Madd.  340;    Fagg  v. 

Goodricke  v.   Brown,   2  Freem.  180,  1  Dobie,  3  Y.  &  C.  lOi. 

Ch.  Ca.  49  ;  Evans  v.  Bickncll,  6  Ves.  *  Hughes  v.  Howard,  25  Beav.  575. 
191 ;  Pickett  v.  Loggon,  14  Ves.  234. 


278  miscella:^eous  frauds. 

fraud  by  axd  upon  co:mpames. 

Fraud  wliicli  consists  in  misrepresentation  or  concealment 
on  the  part  of  companies  Las  been  already  considered;  but 
there  are  other  acts  on  the  part  of  companies  which  are 
fraudulent  in  the  contemplation  of  a  conrt  of  equity. 

The  creditor  of  a  company  who  has  recovered  judgment 
against  the  company  may,  unless  in  the  case  of  companies 
within  the  Companies'  Act,  1802,^  proceed  to  execution  at 
his  pleasure  against  any  particular  shareholder ;  ^  but  if  a  com- 
pany enter  into  an  agreement  with  one  of  its  creditors  that  he 
shall  recover  judgment  against  the  company,  and  take  out 
execution  against  a  particular  shareholder,  there  is  fraud, 
against  which  relief  may  be  had  in  equity.^  The  rule  that  a 
partner  cannot  buy  in  a  debt,  and  enforce  it  against  his  copart- 
ners applies  equally  as  between  shareholders  in  joint  stock 
companies.* 

A  shareholder  in  a  company  acting  tojid  fide  may  sell  his 
shares  to  another  person,  or  give  him  money  to  take  the  shares, 
if  the  transaction  be  open  and  not  merely  colorable ;  but  if  a 
shareholder  gets  rid  of  his  shares  by  assigning  them  to  a 
pauper,  or  to  a  person  over  whom  he  has  entire  control,  in 
order  to  avoid  paying  his  share  ot  the  debts  of  the  company 
and  to  throw  them  upon  the  other  shareholders,  the  transaction 
is  fraudulent.^ 

Where  shares  in  a  joint  stock  company  have  been  issued 
fraudulently,  a  hond  fide  purchaser  of  these  shares  in  the 
market,  before  any  bill  has  been  filed  to  impeach  the  transac- 
tion, is  entitled,  on  a  winding-up  of  the  company,  notwith- 
standing the  fraud,  and  notwithstanding  that  he  bought  the 
shares  at  a  very  great  discount,  to  prove  on  equal  terms  with 

'  25  <fe  2G  Vict.  c.  89,  §^  85,  201.  Railway  Co.,  1  K.  &  J.  399 ;  Bargate  v. 

"  Green  v.  Nixon,  23  Bear.  530  ;  Beck  Short  rid  2;e,  5  II.  L.  297. 

V.  Denn,  3  Jur.  N.  S.  14.  *  Wooclliams  v.  Anglo- Australian,  <fec. 

^  Taylor  v.  Hughes,   2  J.  &  L.    24;  Co.,  2  D.  J.  <fe  S.  1G2. 

Fernih'ough  v.  Leader,  15  L.  J.  Ch.  458,  '  Slater's  Case,   35  Beav.  393.     See 

4  Ed.  Ca.  373;  Horn  v.  Kilkenny,  &c.  Ez-parte  Garstin,  10  W.  R.  457. 


MISCELLANEOUS    FRAUDS.  279 

the  other  shareholders  of  the  company  who  bought  their 
shares  at  par ;  hut  this  privilege  does  not  extend  to  any  per- 
son who  purchased  his  shares  after  the  filing  of  the  bill,  unless 
his  vendor  was  a  hond  fide  holder  of  the  shares  before  bill 
filed,  and  the  onus  of  proof  that  such  was  the  case  is  upon 
liim.^ 

FRAUD  UPON  THE  MORTMAIN  LAWS. 
The  court  will  relieve  against  a  fraud  on  the  Mortmain 
laws.  The  statute  9  Geo.  II,  cannot  be  evaded  by  a  secret 
trust,  and  the  heir  may  compel  the  devisee  to  disclose  any 
promise  which  he  may  have  made  to  the  testator  to  devote 
the  land  to  charity ;  ^  and  such  promise,  if  denied  by  the 
devisee,  may  be  proved  by  evidence  aliunde^  The  trust,  by 
whatever  means  established,  invalidates  the  devise.  This 
doctrine  evidently  assumes  that  the  trust,  if  legal,  would  have 
been  binding  on  the  conscience  of,  and  might  have  been  en- 
forced against,  the  devisee ;  and  this  ground  failing,  the  rule 
does  not  apply  :  as  where  a  testator,  after  devising  lands  by  a 
will  duly  attested,  declares  a  trust  in  favor  of  a  charity  by  an 
unattested  paper  or  by  parol,  the  statute  law,  which  affords  to 
the  devisee  a  valid  defence  against  any  claim  on  the  part  of 
the  charity,  of  course  equally  defends  him  against  the  claim  of 
the  heir,  founded  on  the  charitable  trust.*  The  case  would 
be  different,  however,  if  the  devisee  had  prevailed  on  the 
testator  to  give  him  the  estate  absolutely,  under  an  assurance 
that  the  unattested  paper  was  a  sufficient  declaration  of  trust 
for  the  charity,^  or  under  a  promise  that  if  the  estate  were 
devised  to  him,  he  would  perform  the  trust.® 

»  Barnard  v.  Bagshaw,  1  IT.  <fe  M.  69.  *  Adlington  v  Cann,  3  Afk.  141 ;  cit. 

»  Boson  V.  Statha.n,  1  Ed.  508  ;   Miic-  9  Ves.  519 ;   Wallgrave  v.  Tobbs,  2  K. 

lileston  V.  Brown,  6  Ves.  52;  Stickland  <fe  J.  313;  Lomax  v.  Kiple}-,  3  Sm.  «fe  G. 

V.  Aldridge,  9  Ves.  516  ;  Paine  v.  llull,  48. 

18  Ves.  475.  '  See  Adlington  v.  Cann,  3  Atk.  152. 

'  Edwards  v.  Pike,  1  Ed.  267,  1  Cox,  •  Ihissell  v.  Jackson,  10  Ila.  204.  See ' 

17.  Jarman  ou  Wills,  vol.  I,  p.  213. 


280  MISCELLANEOUS  FRAUDS. 

FRAUDS  ON  THE  LAW  OF  FORFEITUEE. 

A  court  of  equity  will  relieve  against  frauds  on  the  law  of 
forfeiture. 

The  crown  coming  in  on  the  foot  of  an  attainder  has  all 
the  rights  of  the  party  forfeiting,  and  has  the  same  equity  to 
be  relieved  against  conveyances  on  the  ground  of  fraud  as  he 
would  have.  The  crown,  on  a  forfeiture,  takes  the  estate,  sub- 
ject to  all  charges  and  incumbrances  which  would  have  bound 
the  party  forfeiting,  and  is  bound,  too,  thereby,  where  there  is 
no  fraud,  in  respect  of  the  crown.  If,  however,  the  attainted 
party  has  voluntarily  and  designedly  made  a  grant  or  convey- 
ance to  encumber  his  estate,  with  a  view  to  high  treason,  the 
crown,  and  those  taking  froni  it,  would  have  a  right  to  dispute 
that  demand,  and  be  delivered  therefrom,  as  fraudulent.^ 

If  a  man  gives  an  estate  to  A  and  his  heirs,  but  in  case  he 
commits  high  treason,  over  to  another,  this  is  a  void  limitation, 
because  it  is  an  invasion  of  the  laws  of  forfeiture.^  So  also  a 
man  may  substitute  another  legatee  or  executor,  if  the  first 
should  die  during  the  life  of  the  testator,  but  he  cannot  extend 
it  beyond  the  term  of  his  own  life.^ 

FRAUD  UPON  THE  BANKRUPT  LAWS. 

The  principle  of  the  Bankrupt  laws  being  the  equal  dis- 
tribution of  the  property  and  efifects  of  a  bankrupt  among  his 
creditors,*  acts  which  are  done  with  the  object  of  preventing 
an  equal  distribution  of  the  property  and  effects  of  a  bankrupt 
among  his  creditors  are  fraudulent  within  the  meaning  of  those 
laws.^  The  assignment,  accordingly,  by  a  man  of  the  whole  of 
his  estate  and  effects,  or  of  the  whole  with  a  colorable  excep- 

'  Dnke  of  Bedford  v.  Coke,  2  Ves.  *  Worsley  v.  De  Mattes,  1  Burr.  416 , 

115.  "Woodhouse   v.   Murray,  L.  R.   2  Q.  B. 

'Carte  v.  Carte,  3  Atk.  180;   Amb.       637. 
32  '  Young  V.  Waud,  8  Exch.  234. 


MISCELLANEOUS    FRAUDS.  281 

tion  of  part  only,  under  such  circumstances  as  necessarily  to 
defeat  or  delay  his  creditors,  is  a  fraud  within  the  meaning  of 
those  laws,  although  there  be  no  actual  moral  fraud.^  An  ex- 
ception, however,  has  been  grafted  on  the  general  principle. 
The  assignment  by  a  trader  of  his  property  and  effects  for  a 
present  advance  of  money  is  not  necessarily  a  fraud  on  the 
Bankrupt  laws,  though  the  whole  of  his  stock,  present  and 
future,  is  included  in  the  conveyance.  If  the  conveyance  be 
made  hond  fide  for  the  purpose  of  enabling  him  to  carry  on 
his  business,  it  cannot  be  called  a  fraudulent  act  as  tending  to 
defeat  or  delay  creditors,^  although  the  property  or  effects  have 
been  sold  or  pledged  for  a  sum  less  than  their  value.  The 
assignment  by  a  trader  of  all  his  property  and  effects  for  a 
present  advance  of  part  of  their  value  is  not  necessarily  a  fraud 
on  creditors  under  the  Bankrupt  laws.  The  advance  may  be 
the  means  of  enabling  him  to  go  on  with  his  trade,  and  so  the 
transaction  may  be  beneficial  for  the  creditors.  A  hond  fide 
Bale  of  goods  in  a  season  of  pressure  by  a  trader  for  whatever 
ready  money  can  be  obtained  is  valid,  though  the  price  be 
small.  The  proportion  which  the  sum  raised  bears  to  the  value 
of  the  property  sold  or  pledged,  is  a  circumstance  to  be  con- 
sidered in  determining  whether  the  transaction  is  hond  fide  or 
not,  but  is  not  conclusive  that  it  is  fraudulent.^  It  is  for  the 
court  or  the  jury  to  say  whether,  under  all  the  circumstances 
of  the  case,  the  effect  of  the  assignment  is  to  delay  or  defeat 
creditors  *  If  there  was  in  the  minds  of  the  parties  the  sin- 
ister object  of  defeating  or  delaying  creditors,  the  advance  of 

*  Hooper  v.  Smith,  1 W.  Bl.  441 ,  Sie-  Bell  v.  Simpson,  2  H.  <fe  N.  410.  See  Ex- 

bert  V.  Spooner,  1  M.  <fe  "W.  715  ;  Stanger  parte  Wensley,  1  D.  J.  <fe  S.  281 ;  Mercer 

V.  Wilkius,  19  Beav.  626;  Smith  v.  Can-  v.  Peterson,  L.  R.  3  Exch.  104. 

nan,  2  E.  <fe  B.  Z6;Ex-parte  Bland,  6D.  '  Lee  v.  Hart,  11  Exch.  880;  Bittle- 

M.  &  G.  757 ;  Graham  v.  Chapman,  12  C.  stone  v.  Cooke,  6  E.  &  B.  307,  309  ;  Pen- 

B   85  ;  Leake  v.  Young,  5  E.  &  B.  965  ;  nell  v.  Reynolds,   1 1   C   B.  N.   S.  709 ; 

Smith  V.  Timms,  1  H.  &  C.  856;  Young  Shrubsole  v.  Sussams,  16   C.   B.  N.  S. 

V.  Fletcher,  3  H,  &  C.  742;   Woodhouse  453. 

%,.  Muirav,  L.  R.  2  Q.  B.  637.  *  Ih.     Woodhouse  v.  Murray,  L.  R.  2 

'  Bittlestone  v.  Cooke,  6  E.  <fe  B.  307 ;  Q.  B.  637. 

19 


282  MISCELLANEOUS    FRAUDS. 

even  a  substantial  part  of  the  value  of  tlie  property  at  tlie  time 
of  tlie  assignment  would  not  make  the  transaction  valid.  But 
the  court  will  not  hold  that  a  deed  conveying  property  in  con- 
sideration of  a  present  advance  which  bears  a  substantial  pro- 
portion to  the  value  of  the  property,  is  invalid,  unless  it  is  sat- 
isfied that  there  exists  an  intention  to  defeat  or  delay,  and  con- 
sequently to  defraud  creditors;  and  that  object  must  be  the 
object  not  only  of  the  bankrupt  but  also  of  the  party  who  is 
dealing-  with  him.  A  person  dealing  l)ona,  fide  with  the  bank- 
rupt would  be  safe.  Unless  he  knows,  or,  from  the  very  nature 
of  the  transaction,  must  be  taken  necessarily  to  have  known, 
that  the  object  was  to  defeat  or  delay  creditors,  the  deed  can- 
not be  impeached.^  A  conveyance  by  a  trader  of  all  his  prop- 
erty was  held  fraudulent  upon  creditors  within  the  meaning  of 
the  bankruptcy  laws,  even  though  made  in  consideration  of 
marriage,  it  being  shown  that  the  wife  was  cognisant  of  the 
embarrassed  condition  of  the  husband's  affairs.^ 

There  are  authorities  to  show  that  when  a  conveyance  is 
made  by  a  trader  of  all  his  property  and  efifects,  and  the  con- 
veyance is  made  in  part  for  a  bygone  or  pre-existing  debt,  the 
transaction  is  a  fraud  upon  creditors  within  the  meaning  of  the 
Bankrupt  laws,  upon  the  principle  that  in  such  case  the  trader 
does  not  get  an  equivalent.^  But  according  to  other  author- 
ities, the  fact  that  the  consideration  for  which  the  conveyance 
may  be  made  is  in  part  an  old  or  pre-existing  debt,  is  Moi  per 
86  a  fraud  upon  creditors  within  the  meaning  of  those  laws, 
though  the  effect  may  be  to  stop  the  business  of  the  trader.* 
The  assignment  by  a  man  of  all  his  property  with  a  view  to 
release  and  relieve  the  property  from  the  charges  already  laid 

'  Pennell  v.  Revnolds,  11  C.  B.  N.  S.  Smith  w.  Cannan,  2  E.  A  B.  35;  Lacon  v. 

"722 ;  Fraser  v.  Levy,  6  II.  &  N.  16.  See  Liffen,  32  L.  J.  Cli.  316 ;  Oriental  Bank- 

Re  Colemere,  L.  H.  1  I'l).  Apj).  128.  ing  Co.  v.  Coleman,  3  Giff.  11;  Good- 

»  Colombine  v.  Penhall,  1  Sm.    &  G.  ricke  v.  Tavlor,  2  D.  J.  &  S.  135. 

228.  ■*  Bell  y.  Simpson,  2  H.  &  N.  410. 

'Graliama;.  Chapman,  12  C.  B.  85; 


MISCELLANEOUS    FEAUDS.  283 

on  it,  and  not  to  pay  a  past  debt  only,  is  valid.^  So  also  an 
assignment  by  a  man  of  the  whole  of  his  property  in  consider- 
ation of  a  bill  of  exchange  being  taken  up,  is  not  an  act  o'f 
bankruptcy.^  ISTor  is  the  assignment  by  a  trader  of  all  his  prop- 
erty as  security  for  an  advance  of  money,  which  he  afterwards 
applies  in  payment  of  existing  debts,  necessarily  fraudulent 
within  the  meaning  of  the  Bankrupt  laws.  In  order  to  make 
such  an  assignment  fraudulent,  the  lender  must  be  aware  that 
the  borrower's  object  was  to  defeat  or  delay  his  creditors.^ 

An  assignment  by  a  man,  not  of  the  whole  of  his  property 
and  effects,  but  of  his  property  and  effects,  with  a  real  and  sub- 
stantial exception,  is  not  a  fraud  within  the  meaning  of  the 
Bankrupt  laws.*  But  the  deed  is  invalid,  although  a  substan- 
tial part  of  the  property  and  effects  of  the  assignor  be  not  com- 
prised in  it,  if  the  necessary  consequence  of  it  be  to  cause 
insolvency,  or  to  defeat  and  delay  creditors.^  The  rule  applies 
with  peculiar  force,  if  the  fact  of  his  embarrassed  circumstances 
be  known,  or  must  be  necessarily  taken  to  be  known,  by  the 
assignee.® 

Objections,  however,  to  an  assignment  or  other  transaction, 
as  being  in  fraud  of  the  Bankrupt  laws,  are  removed  if  it  is 
founded  on  a  legal  obligation  entered  into  lond  fide  for  a  good 
and  valid  con.-?ideration.  Any  legal  obligation  which  would 
render  an  assignment  unimpeachable,  if  made  when  the  obliga- 
tion was  first  incurred,  will  protect  it  if  made  afterwards.' 
Where  money  was  lent  on  a  verbal  promise  to  give  security, 
and  a  deed  was  executed,  two  days  before  bankruptcy,  purport- 

•  Whitmore  v.  Clarid-e,  33  L.  J.  Q.       v.  Chapman,  12  C.  B.  103;  Hale  v.  All- 
B.  87.  iiutt,  18  C.   B.    526;  Young  i'.  Wand,  8 

'  Mercer  v.  Peterson,  L.  R.  3  Exch.  Excii.  221 ;  ^T-/)a;-<e  Wensley,  1  D.  J.  <fe 

104  S.  281 ;  Goodricke  v.  Taylor,  2  D.  J,  <fe 

»  Re  Colemcre,  L.  R.  1  Cli.  App.  128.  S.  135. 

'  Pennell  v.  Ruyiiolds,  11  C.  B.  N.  S.  °  Ex-partc  Bailey,  3  D.  M.  &  G.  54G; 

T09;  f^niith  p.  Ti'inms.  1  II.  &  C.  849.  Yoini'j;  t;.  Fletcher,  3  11.  &  C.  732.    See 

*  S\an<;cr  v.  Wilkiiis,   19  Beav.  626;  Leake  v.  Young,  5  E.  &  B.  965. 
Smith  *'.  I  annan,  2   E.   &,   B.  45;  Ex-  '  Harris  v.  Rickett,  4  H  ik  K  1. 
farle  Bland,  6  I>.  M.  &  G.  757;  Graham 


284  MISCELLANEOUS    FRAUDS. 

ing  to  be  an  absolute  assignment  to  the  creditor  of  the  equity 
of  redemption  in  some  property,  it  was  held  that  the  promise 
was  sufficient  to  support  the  deed.^  So,  also,  where  a  marriage 
is  solemnized  upon  the  faith  of  a  former  hond  fide  contract  of 
marriage,  it  seems  the  settlement  will  be  maintained,  even 
though  at  the  time  of  the  solemnization  the  husband  may  be 
insolvent  within  the  knowledge  of  the  wife,  if  such  knowledge 
is  not  shown  to  have  existed  at  the  time  of  the  contract,^  pro- 
vided no  act  of  bankruptcy  has  been  actually  committed  at  the 
date  of  the  marriage  with  the  knowledge  of  the  wife.' 

Any  legal  obligation  presently  to  assign  which  is  not  of  the 
assignor's  own  creation  will  excuse  an  assignment  so  far  that  it 
shall  not  be  fi-audulent  within  the  meaning  of  the  Bankrupt 
laws.*  If  the  obligation  be  his  own  creation,  as  if  incurred  by 
his  own  contract,  or  upon  his  undertaking,  then  the  limitation 
must  be  added  that  it  is  such  an  obligation  as  he  might  without 
fraud  have  incurred.' 

A  debtor  may  at  common  law  give  one  creditor  a  prefer- 
ence over  another ;  ^  but  there  is  fraud  against  the  Bankrupt 
laws,  if  a  man  in  contemplation  of  bankruptcy  gives  one  cred- 
itor a  perference  over  another.  In  order  to  constitute  a  fraud- 
ulent preference,  the  transaction  must  not  only  be  in  contem- 
plation of  bankruptcy,  but  it  must  be  purely  voluntary,'  If 
the  circumstances  of  the  party  who  makes  the  payment  or  ex- 
ecutes the  assignment,  are  at  the  time  of  the  payment,  or  of 
the  execution  of  the  assignment,  to  his  knowledge  in  such  a 
situation,  that  he  must  reasonably  expect  bankruptcy  to  be  the 
necessary  consequence  of  his  act,  the  payment  or  the  assign- 
ment must  be  taken  to  have  been  made  in  contemplation  of 

'  Morris  r,  Venables,  15  W.  R,  2.  »  Hutton  v.  Cruttwell,  1  E.  &  B.  16. 

»  Fraser  v.   Thompson,  5  Jur.  N.   S.  *  Supra,  pp.  212,  213. 

669;   4  D.  «fe  J.  659.  ''  Brown  v.  Kempton,  19  L.  J.  C.  P. 

=  Ih.    See  Colorabine  v.  Penhall,  1  Sm.  1*70 ;  Shrubsole  v.  Sussams,  16  C.  B.  N. 

&  G.  228,  mpra,  p.  202.  S.  459. 

*  Payne  v.  Hornby,  25  Beav.  280. 


MISCELLANEOUS    FRAUDS.  285 

bankruptcy.*     There  is  fraudulent  preference,  if  the  intent  be 
to  give  preference  in  the  event  of  bankruptcy.^ 

It  was  formerly  supposed  that,  in  order  to  prevent  a  trans- 
action being  void  as  a  fraudulent  preference,  it  was  necessary 
to  show  something  like  coercion  or  pressure  on  the  part  of  the 
creditor,  and  a  reluctant  yielding  by  the  debtor ;  but  the  only 
question  in  cases  of  the  sort  is  whether  the  act  is  voluntary  on 
the  part  of  the  debtor.  Pressure  is  not  necessary  to  prevent  a 
payment  or  assignment  from  being  a  fraudulent  preference.  It 
is  sufficient  that  the  payment  or  assignment  is  not  the  sponta- 
neous act  of  the  debtor.^  If  the  payment  or  assignment  origi- 
nates with,  or  is  simply  by  the  act  and  will  of  the  debtor,  there 
is  a  fraudulent  preference ;  but,  if  the  creditor  demands  pay- 
ment, pressure  is  not  necessary  on  his  part  to  take  it  out  of  the 
class  of  voluntary  acts.  A  mere  hond  fide  demand  by  the 
creditor,  without  any  pressure,  is  sufficient  to  support  a  pay- 
ment or  transaction  made  in  consequence.*  A  request  by  a 
surety  that  the  money  for  the  payment  of  which  he  is  ulti- 
mately responsible  may  be  paid  over  by  the  debtor  to  the  cred- 
itor, prevents  such  payment  by  the  debtor  from  being  a  volun- 
tary payment,  just  as  much  as  a  request  by  the  creditor  himself.* 

It  is  not,  however,  enough  to  remove  the  objection  of 
fraudulent  preference,  that  a  demand  for  payment  should  be 
made.  It  must  appear  that  the  demand  operated  on  the  mind 
of  the  debtor  in  inducing  him  to  make  the  payment.®  A 
demand  for  payment  will  not  of  itself  legalize  the  payment,  if 
the  debtor  was  uninfluenced  thereby,  and  the  payment  was 


'  GiLbins  v.  riiillips,  7  B.  <fe  C.  529  ;  *  Mogsj  v.  Baker,  4  M.  <fe  W.  348 ;  Stra- 

riook  V.   Jon  s,  4  Biiig.  20;  Aldrcd  v,  chan  w.  Bai-ton,  11  Excli.  (V17;  Brown  i'. 

Constable,   4   Q.  B.    674;  Jolinson   v.  Kempton,  19  L.  J.  C.  P.  170  ;  Johnson  u. 

Fesemeyer,    3   D.    &   J.    24 ;  Ex-parte  Fesemeyer,  3  D.  <fe  J.  24 ;  Edwards  ». 

Wensley,  1  D.  J.  <fe  S.  281.  Glyn,  2  El.  &  El.  43. 

■"  Blown  V.  Kempton,  19  L.  J.  C.  T.  '  Edwards  v.  Glvn,  2  El.  &  El.  47. 

169.  °  Cook  V.  Pritchard,  6  He.  K  K.  34; 

'  Jolmsun  V.  Fesemeyer,  3  D.  &  J.  24.  Brown  v.  Kempton,  19  L.  J.  C.  P.  169. 


286  MISCELLANEOUS    FRAUDS. 

made  voluiitarilj  bj  tlie  debtor,  aud  witli  a  view  to  prejudice 
his  other  creditors.'^ 

Other  circumstances,  besides  a  demand  for  payment  on  the 
part  of  the  creditor,  may  rebut  the  presumption  of  fraudulent 
preference  on  the  part  of  the  debtor.  Although  the  trans- 
action is  apparently  voluntary,  if  the  effect  of  the  evidence  is 
to  show  that  the  desire  to  give  a  fraudulent  preference  was 
not  the  motive  operating  on  the  debtor  in  banding  over  his 
assets  to  the  particular  debtor,  the  transaction  is  valid.^  If 
the  debtor,  though  he  was  aware  that  bankruptcy  was  unavoid- 
able, and  though  no  application  was  made  for  payment,  has 
paid  the  debt  simply  in  discharge  of  an  obligation  he  had 
entered  into  to  pay  it  on  a  given  day,  without  any  view  of 
giving  a  preference  to  the  particular  creditor  at  the  expense  of 
the  rest,  the  payment  would  not  be  a  fraudulent  preference 
within  the  meaning  of  the  Bankrupt  laws.^ 

The  knowledge  of  the  creditor  preferred,  or  his  privity  to 
the  circumstances,  is  not  to  be  taken  into  consideration  in 
estimating  whether  a  transaction  is,  or  is  not,  a  fraudulent 
preference.  If  it  appear  that  a  demand  was  made  by  the 
creditor,  it  is  immaterial  that  he  may  have  been  aware  of  the 
ijisolvency  of  the  debtor.* 

If  property  be  granted  to  a  man  defeasible  on  his  bank- 
ruptcy, the  grant  is  good,  if  made  by  a  person  other  than  the 
bankrupt,  and  if  the  condition  is  express.^  But  the  law  is 
clearly  settled  that  no  man  possessed  of  property  can  reserve 
that  property  to  himself,  until  he  shall  become  bankrupt,  and- 
then  provide  that  in  the  event  of  bankruptcy  it  shall  pass  to 
another,  and  not  to  his  creditors.®    A  covenant  or  bond  by  a 

'  Cook  V.  Rogers,  7  Bing.  438.  '  Roe  v.  Galliers,  2  T.  R.  133 ;  Doe  v. 

»  Bills  V.  Smith,  6  B.  &  S.  321.  Bevan,  3  M.  tfe  S.  353 ;  Donimett  v.  Bed- 

*  lb.     Hunt  V.  Mortimer,  10  B.  &  C.  ford,  3  Ves.  149,  6  T.  R.  684 ;  Seymour 
44.  V.  Lucas,  29  L.  J.  Cli.  841 ;  Griffith  and 

*  Davison  V.  r.obinson,   3  Jur.  N.  S.  Holm.  B.ink. '277. 

791.  ^  Higinbotham  v.  Holme,  19  Vea.  88; 


MISCELLANEOUS    FBAUDS.  287 

man  to  pay  moneys  upon  the  contingency  of  bis  bankruptcy, 
even  though  given  in  consideration  of  marriage,  is  a  fraud 
upon  the  Bankrupt  laws,  and  cannot  be  upheld,*  except  as  far 
as  the  value  of  the  wife's  fortune  may  extend.^  If  the  court 
can  find  a  definite  sum  which  can  be  appropriated  as  the  wife's 
property,  the  covenant  will  to  that  extent  be  supported.^  The 
fortune  of  a  wife  may  be  settled  on  her  husband  till  he  shall 
become  bankrupt,  or  make  a  composition  with  his  creditors, 
and  then  to  her  separate  use.* 

Assignments  by  a  trader  of  all  his  property  and  effects  in 
trust  for  all  his  creditors  were,  under  the  old  Bankrupt  laws, 
held  void  ;  ^  but  they  were  protected  to  a  certain  degree,  and 
under  certain  conditions,  by  the  Bankruptcy  Act,  1S49,®  and 
are  still  further  protected  by  the  Bankruptcy  Act,  1861.'  By 
the  192d  section  of  the  latter  Act,  trust  deeds  for  the  benefit 
of  creditors,  composition  and  inspectorship  deeds  are  binding 
on  all  the  creditors  of  a  certain  debtor,  if  certain  specified 
conditions  are  complied  with.  The  power,  however,  given  by 
the  clause  enabling  the  majority  of  creditors  to  bind  the  non- 
assenting  minority,  must  be  exercised  hondfide  for  the  benefit 
of  all  the  creditors.  It  is  necessary,  in  order  to  make  a  deed 
of  this  description  binding,  that  it  should  be  free  from  all 
taint  of  fraud.  If  there  is  a  fraudulent  bargain  for  the  benefit 
of  some  creditors,  or  if  the  majority  of  creditors  are  induced 
by  friendly  feelings  towards  the  debtor  to  accept  a  composition 
greatly  disproportioned  to  the  assets,  the  court  wiU  hold  the 
(Iced  not  binding  on  the  non-assenting  creditors.     But  if  the 


Higfpnson  v.   Kelly,  1  Ba.  <fe  Be.  255  ;  '  Higginson  v.  Kelly,  1  Ba.  &  Ee.  255; 
iJe'Casey's  Trusts,  4  Ir.  Ch.  247  ;  Whit-  Lesler  «;.  Garland,   5  Sim.  2i)5;  Whit- 
more  V.   Mason,    2  J.  ife  II.  212.     See  more  v.  Mason,  2  J.  (t  11.  204, 
Holmes  v.  Penney,  3  K.  <fe  J.  102.  '  lb. 

'  Ex-parie  lYi\\,  1  Cox,  300  ;  Ex-parte  *  Lester  t).  Garland,  5  Sim.  222;  Sharj. 

Cooke,  8  Ves.  353  ;  Ex-fiarle  Murphy,  1  v.  Cosseratt,  20  Beav.  470. 

Sch.  &  Lef.  48 ;  IIiginbotli:ini  v.  Holme,  '  Griffith  and  Holm,  on  Bank.  120. 

19  Yes.  8S;  Hig-iiisou  v.  Kelly,  1  Ba.  •  lb.  987. 

&  Be.  25J .         '  '  lb.  Iu02. 


288  MISCELLANEOUS    FRAUDS. 

assenting  majority  appear  to  have  exercised  tlieir  discretion 
hond  fide  for  the  benefit  of  the  creditors,  the  court  will  not 
review  the  quantum  of  the  composition.^  There  is  fraud  upon 
the  clause,  if  a  man  having  no  assets  professes  to  assign  all  his 
property  to  fictitious  creditors.' 

FRAUD  UPON  RESTRAINING  STATUTES,  ETC. 

In  addition  to  those  already  enumerated,  there  are  other 
frauds  upon  statutes  or  acts  of  Parliament  against  which  relief 
may  be  had  in  equity  :  *  such  as,  fraud  upon  the  restraining 
statutes  ;  ^  frau<  I  upon  the  registry  acts  ;  *  fraud  upon  a  private 
act  of  Parliament ;  ^  and  fraud  on  the  revenue  laws.' 

FRAUD  IN  AWARDS. 

Courts  of  equity  have  from  a  very  early  period  had  juris- 
diction to  set  aside  awards  on  the  ground  of  fraud,'  and  still 
entertain  the  jurisdiction,  except  where  it  is  excluded  by 
statute.®  t 

*  Ex-parte  Cowen,  L.  R.  2  Ch.  App.  *  Howard  v.  Earl  of  Shrewsbury,  L. 
563.                                                                   R.  2  Ch.  App.  772. 

*  Re  Clunn,  12  W.  R.  1093.  °  Evans  v.  Richardson,  3  Mer.  469. 

^  Dean  and  Chapter  of  Windsor  v.  '  Greenhill  v.  Church,  3  Rep.  Ch.  49 ; 

Penvin,  Moor.  789.  Brown  /•.  Brown,  1  Vern.  156;   Earl  v. 

*  Curtis  V.  Perry,  6  Ves.  739 ;  Osborne  Stocker,  2  Vern.  251 ;  Burton  v.  Knight, 
V  Williams,  18  Ves.  379;  Battersby  v.  ib.  514. 

Smvtb,  3  Madd.  110.  ^  Smith  v.  Whitmore,  1  H.  <fe  M.  576, 

^  2  D.  J.  &  S.  297. 


*  Whatever  is  done  in  fraud  of  a  law,  is  done  in  violation  of  it.  Lee  », 
Lee,  8  Pet.  44. 

t  The  jurisdiction  of  Chancery  over  judgments  on  awards  is  confined 
to  those  cases  where  a  court  of  equity  is  authorized  to  examine  into  and 
decree  upon  the  judgment  of  a  court  of  common  law,  rendered  upon  the 
verdict  of  a  jury.  There  may  be  certain  other  cases  where,  from  fraud, 
corruption,  or  misbehavior,  it  may  be  necessary  to  make  the  arbitrators 
parties  in  equity,  in  order  to  obtain  a  discovery,  and  in  which  an  exten- 
sion of  the  jurisdiction  of  a  court  of  equity  beyond  this  limit  may  be 
allowed.  Waples  v.  Waples,  1  Harring.  393  ;  Emerson  v.  Udall,  13  Vt. 
472, 


MISCELLANEOUS    FRAUDS.  289 

In  cases  where  the  submission  to  arbitration  was  by  agree- 
ment between  the  parties,  the  only  mode  of  obtaining  relief 
formerly  against  an  award  which  had  been  obtained  under 
circumstances  of  fraud  and  corruption  on  the  part  of  the 
arbitrator,  was  by  bill  in  equity.  But  if  the  agreement 
or  submission  to  arbitration  be  in  writing,  and  contain  a 
proviso  that  it  may  be  made  a  rule  of  court,  the  case  is  now 
governed  by  stat.  9  &  10  Will.  Ill,  c.  15,  and  the  jurisdiction 
of  equity  is  excluded.^  A  court  of  equity  has  no  jurisdiction, 
even  on  the  ground  of  fraud,  if  a  submission  has  been  made  a 
rule  of  a  court  of  common  law  under  the  statute.^ 

If  there  be  a  proviso  in  the  agreement  or  submission  to 
arbitration  enabling  the  parties  to  make  it  a  rule  of  court,  it  is 
immaterial  that  it  may  not  have  been  actually  made  a  rule  of 
court  until  after  the  award  has  been  made,  or  until  after  bill 
filed.'  The  Court  of  Chancery  is  one  of  the  courts  of  record 
invested  with  summary  jurisdiction  under  the  statute.'*  If 
there  was  no  proviso  in  the  agreement  or  submission  to  arbi- 
tration enabling  the  parties  to  make  it  a  rule  of  court,  the 
jurisdiction  was,  until  a  recent  period,  exclusive  in  equity.^ 
But  by  the  seventeenth  clause  of  the  Common  Law  Procedure 
Act,  17  &  18  Vict.  c.  125,  it  is  declared  that  every  agreement 
or  submission  to  arbitration  by  consent,  whether  by  deed  or 
instrument  in  writing,  may  be  made  a  rule  of  a  court  of 
common  law,  unless  a  contrary  intention  appears.  The  mere 
existence,  however,  of  a  power  to  make  an  agreement  or  sub- 
mission to  arbitration  a  rule  of  court,  is  not  tantamount  to  an 
agreement  that  it  shall  be  made  so,  nor  does  it  of  itself,  and 
independently  of  agreement,  exclude  the  ordinary  jurisdiction 


'  Homina:  v.  Swinerton,    2   Ph.  79 ;  '  Nichols    v.   Roe,  3  M.  <fe  K.   439 ; 

Smith  V.  Whitmore,  1  H.  &  M.  576,  2  Heming  v.  Swinerton,  2  Ph.  7!>. 

P  J   A  S    297  *  Ueming  v.  Swiiierton,  2  Ph.  79. 

''Auriol'- "smith,  T.  &  R.  121 ;  Daw-  » v.  Mills,  17  Ves.  419;  Good. 

son  V.  Sadler,  1  Sim.  &  St.  537.  man  v.  Sayers,  2  J.  A  W.  249, 


200  MISCELLAXEOUS    FRAUDS. 

of  tlie  court.^  If  tliere  be  no  proviso  that  it  may  "be  made  a 
rule  of  court,  it  does  not  become  a  rule  of  court  under  the 
Common  Law  Procedure  Act,  unless  it  be  actually  made  a  rule 
of  court.^ 

Before  the  statute  9  &  10  Will.  Ill,  c.  15,  courts  of  law 
were  in  the  practice,  upon  consent  of  parties,  of  referrhig  causes 
to  arbitration,  either  by  rule  of  court,  or  by  order  of  a  judge,  or 
at  7iisi  jjrius,  and  of  making  the  submission  at  the  same  time  a 
rule  of  court.  In  such  cases  courts  of  ec[uity  exercised  a  concur- 
rent jurisdiction  over  the  award  made  upon  the  reference  with 
courts  of  law,  and  the  statute  of  William  does  not  appear  to  have 
interfered  with  the  jurisdiction.^  Kor  has  the  jurisdiction  been 
excluded  by  the  enlarged  powers  conferred  on  courts  of  com- 
mon law  by  the  Common  Law  Procedure  Act,  17  &  18  Yict. 
c.  125.*  It  is,  however,  the  rule  of  the  court  not  to  interfere 
with  an  award  made  under  a  reference  at  law,  unless  there  be 
something  in  the  circumstances  of  the  case  to  show  or  to  make 
it  appear  that  a  court  of  law  has  not  full  power  and  jurisdic- 
tion to  grant  full  and  adequate  relief  The  fact  that  a  court  of 
common  law  has  a  power  of  remitting  the  award  for  recon- 
sideration, has  weight  with  the  Court  of  Chancery  when  called 
upon  to  interfere.^ 

There  is  fraud  in  an  award  if  it  be  obtained  through  cor- 
ruption or  partiality  on  the  part  of  tlie  arbitrator."^  *     In  a  case 


'  Smith  V.  Whitmore,  2  D.  J.  &S.  308;  *  §§  3-16. 

per  Turner.  L.  J.  *  Londonderry  and  Ennisldllen  Rail- 

^  Jb.  -way  (,'o.    v.  Lefshman,    12  B.-av.  423; 

'  Lord  Lonsdale  v.  Littledale,  2  Ves.  Harding  v.  Wiclihain,  2  J.  ck  H.  676. 
Jr.  451  ;  Nicliols  v.  Chalie,  14  Ves.  207  ;  "  Loni  Lonsd.ile  v.  Littledale,  2  Ves. 

Nicliolls  V.  Roe,  3  M.  ct  K.  439  ;  Clmek  Jr.  453;  Lingood  v.   Croucber,   2  Atk. 

V.  Cremer,  2  I'h.  477;  Harding  v.  Wick-  396. 
ham,  2  J.  &  H.  676. 


*  It  is  misbehaTior  in  arbitrators  tc  repose  undue  confidence  in  the 
unproved  statements  of  one  of  the  parties.     Lee  r.  Patillo,  4  Leigh,  486. 
For  misbehavior   in   the   arbitrators,  by  refusing    to    hear  material 


MISCELLANEOUS    FRAUDS.  291 

^here  arbitrators  had,  either  by  force  or  fraud,  excluded  a 
co-arbitrator,  or  either  of  the  parties,  from  their  meetings,  it 
was  held  to  furnish  such  a  presumption  of  corruption  as  to  be 
a  sufficient  ground  for  setting  aside  the  award.^  So,  also,  it  is 
against  good  faith  for  a  person  appointed  arbitrator  to  consider 
himself  as  agent  of  the  person  appointing  him,^  or  to  buy  up 
the  unsustained  claims  of  any  of  the  parties  to  the  reference.' 
So,  also,  there  is  fraud  if  the  award  has  been  obtained  by  fraud 
or  concealment  of  material  circumstances  on  the  part  of  one 
of  the  parties,  so  as  to  mislead  the  arbitrator.  If  either  party 
be  guilty  of  fraudulent  concealment  of  matters  which  he  ought 
to  have  declared,  or  if  he  wilfully  mislead  or  deceive  the 
arbitrator,  the  award  may  be  set  aside.*  An  award  will  not, 
however,  be  set  aside  on  the  ground  that  the  arbitrator  has 
been  mislead  by  the  evidence  of  a  witness  who  might  have 
been  cross-examined.'  There  is  also  fraud  to  set  aside  an 
award,  if  the  award  be  obtained  by  undue  means ;  as,  for 
instance,  if  the  witnesses  have  been  examined  in  the  absence 
of  the  parties;'*  or   if  the  award  has  been  made  clandes- 

»  Burton  v.  Knight,  2  Vern.  514.  See  Ab.  Arbitr  (1  a)  39,  2  Eq.  Ca.  Ab.  80; 

Haigh  V.  Haigh,  3  D.  F.  <fe  J.  159.  Ives  v.  Metcalfe,  1  Atk.  64 ;  Gartside  v. 

^  Ciilci-aft  t)T  Roebuck,  1  Ves.  Jr.  22G.  Gartside,  3  Anst  YMS. 

"  Blennerbasset  v.  Day,  2  Ba.  &  Be.  °  IMliuore  v.  Hood,  8  Scott,  180. 

116.  "  Re  Plows  V   Middleton,  r,  Q.  B.  845. 

*  South  Sea  Co.  v.  Bumpstead,  Vin.  See  Uaigh  v  Haigh,  3  D.  F.  &  J.  159. 


testimony,  an  award  will  be  set  aside.  Van  Cortland  v.  Underbill,  17 
Johns.  405 ;  s.  c.  2  Johns.  Ch.  339. 

An  award  estimating  damages  or  the  value  of  property  will  not  be  set 
aside  in  equity,  unless  the  estimate  is  so  enormously  disproportioned  to 
the  case  proved  as  to  strike  every  one  that  there  must  have  been  corruption 
and  partiality.  Hand  v.  lledington,  13  N.  II.  72 ;  Bumpass  r.  Webb,  4 
Port.  G5  ;  Beverly  v.  RcnnoMs,  Wythe,  105  ;  Van  Cortland  v.  Underbill,  17 
Johns.  405  ;  s.  c.  2  Johns.  Cb.  339. 

*  Pierce  v.  Perkius,  2  Dcv,  Eq.  250  ;  Emery  v.  0^^dngs,  7  Gill,  488; 
Knowlton  i\  Nicklcs,  29  Barb.  4G5. 


292  MISCELLANEOUS    FRAUDS. 

tinely  witliout  liaaring  each  party ;  ^  *  or  if  the  award  has  been 
made  by  one  arbitrator  apart  from  the  others ;  ^  or  if  interviews 
have  taken  place  between  the  arbitrator  and  one  party  in  the 
absence  of  the  others.'  So,  also,  the  existence  of  any  ground 
calculated  to  bias  the  mind  of  tlie  arbitrator,  unknown  to 
either  of  the  parties,  is  sufficient  for  the  interference  of  the 
court ;  *  or  if  one  of  the  parties  has  not  been  allowed  a  proper 
opportunity  of  discussing  his  case.^  If  interviews  have  taken 
place  between  the  arbitrator  and  one  of  the  parties,  in  the 
absence  of  the  other,  similar  misconduct  on  the  part  of  the 
person  applying  will  not  prevent  the  court  from  setting  aside 

*  Ives  V.  Midcalfi',  1  Atk.  64 ;  Hard-  ^  Harvey  v.  Shelton,  1  Beav.  455. 

in?  V.  Wickham,  2  J.  &  H.   676.     S^ee  *  Kemp  v.  Rose,  ]  Giff.  258. 

Smith  V.  Whitmore,  1  H.  &  M.  576.  '  Spettique  v.  Carpenter,  3  P.  'Wins. 

"  lie  Plews  V.  Middleton,  6  Q.  B.  852.  361. 


*  Peters  v.  Newkirk,  6  Cow.  103 ;  Lutz  v.  Lintlucum,  8  Pet.  178  ;  Jordan 
V.  Hyatt,  3  Barb.  634  ;  Rigden  v.  Martin,  6  H.  &  J.  403;  "Walker  v.  City 
Council,  1  P,ailey's  Ch.  443. 

Evidence  cannot  be  introduced  witliout  giving  the  opposite  party  an 
opportunity  for  cross-examination.     Shinnis  v.  Coil,  1  McCord's  Ch.  478. 

Merely  recalling  a  witness  who  had  been  examined,  for  the  purpose  of 
explaining  his  testimony,  in  the  absence  of  both  parties,  is  not  a  sufficient 
ground.     Herrick  v.  Blair,  1  Johns.  Ch.  101. 

The  mere  fact  that  a  party  oflFered  and  prevailed  before  the  arbitrators, 
upon  a  groundless  claim,  is  no  ground  for  charging  him  with  fiaud.  The 
mere  fact  that  lie  considered  it  one  of  doubtful  equity,  or  even  honestly 
believed  that  it  was  not  well  founded,  if  all  the  facts  known  to  him  were 
fairly  laid  before  the  arbitrators,  is  no  such  fraud  as  will  justify  a  court  of 
equity  in  interfering.  He  must;  eithei  by  the  suggestion  of  falsehood,  or 
the  suppression  of  truth,  have  i)resented  to  the  arbitrators  a  state  of  facts 
in  regard  to  the  merits  of  the  claim  which  were  iictitious,  and  which  he  at 
the  time  believed  to  be  such.  Emerson  «.  Udall,  13Vt.  477;  Bulkley  t). 
StaiT,  2  Day,  552. 

The  discovery  of  new  evidence,  or  that  the  case  might  be  i)ut  on  a 
different  footing  by  new  evidence,  or  that  a  more  perfect  rule  might  have 
been  adopted,  are  no  grounds  for  an  application  to  Chancery  to  have  an 
award  set  aside.     Allen  v.  Ranney,  1  Ct.  569. 

New  evidence  may  be  so  de;  isive,  and  have  been  so  supjiressed  by  the 
adverse  party,  tint  an  award  ■)ught  to  be  relieved  against  in  equity. 
Lankton  v.  Scott,  Kirby,  356. 


MISCELLANEOUS    FKACDS.  293 

the  award,  for  tlie  matter  concerns  the  due  administration  of 
justice.^ 

Equity  will  not  give  relief  against  an  award,  if  the  conduct 
of  the  party  making  the  application  has  been  such  as  to 
destroy  his  right  to  resort  to  the  court  for  relief.^  An  agree- 
ment for  reference,  accordingly,  cannot  be  set  aside  as  obtained 
by  undue  pressure,  if  the  party  objecting  has  attended  the 
reference,  and  taken  the  chance  of  an  award  in  his  favor.^  Nor 
can  relief  be  had  against  an  award  when  there  has  been  any 
laches  on  the  part  of  the  person  making  the  application.* 
Similar  misconduct,  however,  to  that  complained  of  on  the 
part  of  the  person  making  the  application,  will  not  prevent  the 
court  from  setting  aside  an  award,  if  the  award  has  been 
obtained  by  undue  means.'' 

FRAUD  IN  JUDGilENTS. 
A  judgment  or  decree  obtained  by  fraud  upon  a  court, 
binds  not  such  court  or  any  other,  and  its  nullity  upon  this 
ground,  though  it  has  not  been  set  aside  or  reversed,  may  be 
alleged  in  a  collateral  proceeding.^*  "  Fraud,"  said  De  Grey, 
C.  J.,  "  is  an  extrinsic,  collateral  act,  which  vitiates  the  most 

*  Harvey  v.  Shelton,  1  BeaY.  455.  6Y4 ;  Nichols  v.  Ilaiicock,  V  D.  M.  <fe  G. 
"  Smith  V.  Whitmore,  1  H.  &  M.  576,       300. 

2  D.  J.  &  S.  297.  ^  Harvey  v.  Shelton,  7  Beav.  455. 

=  brmes  v.  Beadel,  2  Giff.  166,  2  D.  F.  *  Philippson  v.  Lord  Egreraont,  6  Q. 

&  J.  383 ;  Fx-parte  Wyld,  2  D.  F.  &  J.  B.  582 ;  Lord  Bandon  v.  Becber,  3  CI. 

642.  <fe  Fin.  510 ;  Sheddon  v.  P:\trick,  1  Macq. 

*  Jones  V.  Bennett,  1  Bro.  P.  C.  528.  535 ;  Reg.  v.  Saddlers'  Co.,  10  H.  L. 
See  Eada  v.  Williams,  4   D.  M.  &  G.  431,  per  Willes,   J.     See  Toramey    v. 

White,  4  H.  L.  313. 


*  Webster  v.  Reid,  11  Hov?.  437  ;  Carpenter  v.  Hart,  5  Cal.  406. 

Judgments,  wlietlier  confessed  or  rendered  upon  a  verdict,  may  be 
attacked  collaterally  as  fraudulent  against  creditors.  Clark  v.  Douglass, 
62  Penn.  408. 

A  judgment  may  be  attacked  collaterally  for  some  matter  arising  sub- 
sequently to  the  entry  of  it,  as  payment  or  a  release,  which  would  show 
that  it  was  kept  on  foot  fraudulently.  Campbell  v.  Sloac,  62  Penn. 
481. 


294  MISCELLANEOUS    FRAUDS. 

solemn  proceedings  of  courts  of  justice.  Lord  Coke  says  it 
avoids  all  judicial  acts,  ecclesiastical  and  temporal."  *  *  In 
applying  this  rule,  it  matters  not  whether  the  judgment  im- 
pugned has  been  pronounced  by  an  inferior  or  by  the  highest 
court  of  judicature  in  the  realm,  but  in  all  cases  alike  it  is 
competent  for  every  court,  whether  superior  or  inferior,  to 
treat  as  a  nullity  any  judgment  which  can  be  clearly  shown  to 
have  been  obtained  by  manifest  fraud.^  Whether  an  innocent 
party  would  be  allowed  to  prove  in  one  court  that  a  judgment 
against  him  in  another  court  was  obtained  by  fraud,  is  a  ques- 
tion not  equally  clear,  as  it  would  be  in  his  power  to  apply 
directly  to  the  court  which  pronounced  it  to  vacate  it.'  But, 
however  this  point  may  be  ultimately  determined,  thus  much 
is  evident,  that  a  guilty  party  would  not  be  permitted  to  defeat 
a  judgment  by  showing  that,  in  obtaining  it,  he  had  practiced 
an  impositition  on  the  court,  for  it  would  be  an  outrage  on 
justice  and  common  sense  if  a  person  could  thus  avoid  the 
consequences  of  his  own  fraudulent  conduct.* 

FEAUD  UPON  THE  CROWN. 
A  conveyance  executed  in  fraud  of  proceedings  under  an 
outlawry,  is  a  fraud  upon  the  Crown,  and  will  be  set  aside.^ 

*  Rex   V.   Duchess   of  Kingston,    20  '  Prudham  v.  Philipps,  2  Ambl.  763; 

How.  St.  Tr.  544,  2  Smith's  L.  C.  687.  20  How.  St.  Tr.  479, 481 ;  Rex  v.  Duch- 

See  Brownsword  v.  Edwards,   2  Ves.  ess  of  Kingston,  20  How.  St.  Tr.  544. 

246 ;  Meddowcroft  v.  Hu2,uenin,  4  Moo.  ■•  Prudham  v.  Philipjis,  2  Arab.  763, 

P.  C.  386  ;  Perry  v.  Meddowcroft,    10  20  How.  St.  Tr.  479 ;  Doe  v.  Roberts,  2 

Beav.  122;  Harrison  v.  Mayor  &c.  of  B.  &  Aid.  367;  Bessey  v.  "Windham,  6 

Southampton,  4  D.  M.  &  G.  137.  Q.  B.  166. 

»  Sheddsu  v.  Patrick,  1  Macq.  535.  '  Att.-Gen.  v.  Richards,  1  Ph.  383. 


*  Gill  V.  Carter,  6  J.  J.  Marsh.  484 ;  HaU  v.  HaU,  1  GUI.  391 ;  Wilson  v. 
Watts,  9  Md.  356. 

With  any  fraudulent  conduct  of  parties  in  obtaining  a  judgment,  or  in 
attempting  to  avail  themselves  of  it,  a  court  of  equity  can  regularly  take 
cognizance.  The  true  and  intrinsic  character  of  proceedings,  as  well  in 
courts  of  law  as  in  pals,  is  alike  subject  to  the  scrutiny  of  a  court  of 
equity,  which  will  probe,  and  either  sustain  or  annul  them,  according  to 


MISCELLANEOUS    FRAUDS.  295 

FRAUD  UPON  COURTS  OF  COMPETENT  JURISDICTION. 

A  court  of  equity  will  give  assistance  to  enforce  the  judg- 
ments, decrees,  or  sentences  of  other  courts  of  competent 
and  lawful  civil  jurisdiction,  when  the  execution  of  such  judg- 
ments, decrees,  and  sentences  is  defeated  or  obstructed  by 
fraudulent  contrivances.^ 

A  voluntary  settlement,  accordingly,  of  real  and  personal 
estate,  made  by  a  man  who  was  defendant  in  a  suit  in  the 
Ecclesiastical  Court,  with  the  intent  of  withdrawing  his  prop- 
erty from  the  process  of  that  court,  was  set  aside.^  Although 
the  deed  may  have  been  executed  before  any  right  was  de- 
clared, or  any  order  for  payment  of  money  was  made,  yet  if  it 
appear  that  the  deed  was  executed  for  the  purpose  of  defeating 
the  right  which  the  defendant  knew  the  plaintiff  was  entitled 
to  establish,  it  will  be  considered  to  have  been  executed  with 
the  view  and  intention  of  defrauding  him.^ 

FRAUD  UPON  THE  LEGISLATUPtE. 

In  Yauxhall  Bridge  Co.  v.  Earl  Spencer,^*  it  was  held 
that  an  agreement  between  a  land-owner  and  a  company,  that, 
in  the  event'of  his  not  opposing  an  application  to  Parliament, 
the  land-owner  should  receive  a  sum  of  money,  is  a  fraud 
upon  the  legislature  if  concealed  from  Parliament,  and  is, 
therefore,  void  upon  grounds  of  public  policy.     But  the  prin- 

>  Blenkinsopp    v.    Blenkinsopp,    12  'ID.  M.  &  G.  500. 

Beav.  586.  *  2  Madd.  306 ;  S.  C.  Jac.  64. 

"  lb.     ID.  M.  &  G.  500. 


their  real  character,  and  as  tlie  ends  of  justice  may  require.  Byers  ». 
Surget,  19  How.  303  ;  s.  c.  1  Hemp.  715 ;  Williams  v.  Fowler,  2  J.  J.  Marsh. 
405 ;  Griffin  v.  Sketo,  80  Geo.  300. 

*  Misrepresentation  and  concealment  employed  in  obtaining  an  act  of 
the  legislature,  arc  ground  for  a  court  of  equity  to  give  relief  by  depriving 
a  party  of  such  unjust  advantage  obtained  thereby.  State  v.  Reed,  4  H.  «fc 
McH.  6;  Williamson  v.  Williamson,  3  Smed.  &  Mar.  715. 


296  LOSS  OF  EIGHT  TO  IMrEACH 

ciple  upon  wliicli  that  case  was  founded  is  open  to  mucli  ques- 
tion. The  better  opinion  would  seem  to  be,  that  there  is  no 
fraud  upon  the  legislature  unless  the  agreement  is  one  which 
the  parties  are  bound  to  communicate.  There  may  be  cases 
in  which  an  agreement  of  the  sort  should  be  communicated  to 
the  legislature,  but  there  can  be  no  doubt  that  in  ordinary 
cases  it  is  open  to  parties  to  enter  into  such  an  agreement,  and 
that  there  is  no  obligation  incumbent  on  them  to  communicate 
it  to  the  legislature.^  The  question  whether  such  an  agree- 
ment is  binding  on  the  company  after  incorporation,  is  a  very 
different  one. 


SECTION  VI.-HOW  THE  EIGHT  TO  IMPEACH  A  TRANS- 
ACT! ON    ON    THE    GROUND    OF   FRAUD    MAY    BE 

LOST. 

Transactions,  although  impeachable  in  equity  at  the  time 
of  inception,  and  for  some  time  afterwards,  on  the  ground  of 
fraud,  may  become  unimpeachable  by  a  subsequent  confirma- 
tion, by  acquiescence,  or  by  the  mere  lapse  of  time. 

CONFIRMATION. 

In  order  that  an  act  may  have  any  effect  or  validity  as  a 
confirmation,  it  must  clearly  appear  that  the  party  confirming 
was  fully  apprised  of  his  right  to  impeach  the  transaction,  and 
acted  freely,  deliberately,  and  advisedly,  with  the  intention  of 
confirming  a  transaction  which  he  knew,  or  might,  or  ought, 
with   reasonable  or  proper  diligence,  to  have  known  to  be 

'  Simpson  v.  Lord  Howden,  10  A.  A  ing  a  local  act  of  Parliament,  Mangles 

E.  793,  9  CI.  «fe  Fin.  61 ;  Taylor,  v.  Chi-  v.  Grand  Dock  Colliery  Co.,  10  Sim, 

Chester,    etc.,    Railway    Co.,  L.    R.    2  519. 
Exch.  356.     See  as  to  fraud  in  obtain- 


ON  THE  GROUND  OF  FRAUD.  297 

impeachable.*  If  Lis  right  to  impeach  the  transaction  be 
concealed  from  him,  or  a  free  disclosure  be  not  made  to  him  of 
every  circumstance  which  it  is  material  for  him  to  know,  or  if 
the  act  takes  place  under  pressure  or  constraint,  or  bj  the 
exercise  of  undue  influence,  or  under  the  delusive  opinion  that 
the  original  transaction  is  binding  on  him,  or  if  it  be  merely  a 
continuation  of  the  original  transaction,  the  confirmation 
operates  as  nothing.^f     Confirmation  may  be  by  will  as  well  as 

*  Cann  v.  Cann,    1    P.   Wms.   121;  425;   Wedderburn   v.  Wedderburn,   2 

Cole  V.  Gibbons,  3  P.  Wms.  290;  Crowe  Keen,  722;   De  Montmorency  v.  Deve- 

V.  Ballard,  3  Bro.  C.  C.  119,  2  Cox,  253;  reux,  7  01.  <fc  Fin.   188;    Muriiallen  v. 

Chesterfield    v.   Jansen,    2   Ves.    125;  Marum,  3  Dr.  <fe  War.  317;  Salmon  w. 

Walker  v.  Symonds,  3  Sw.  1 ;  Murray  Cutts,  4  Deg.  <fe  S.  132;  Stump  v.  Gaby, 

V.  Palmer,  2  Sch.  &  Lef.  486 ;  Morse  v.  2  D.  M.  &  G.  623;  Roberts  v.  Tunstall, 

Roj-al,  12  Ves.  355;  Purcell  v.  Macna-  4  Ha.  257;  Cockell  v.  Taylor,  15  Beav. 

mara,    14   Ves.   91;    Gowland    w.    De  125;  Waters  v.  Thorn,  22  Beav.  547; 

Faria,  17  Ves.  20;  Woodv.  Downes,  18  Savery  v.  Kin^,    5  H.  L.  627;    Athe- 

Ves.   128;   Say  v.  Barwick,  1  V.  <fe  B.  naum  Life  Society  «^.  Poolej^,  3  D.  &  J. 

195;  Ruche  v.  O'Brien,  1  B.  <fe  B.  338,  299;   Smith  v.  Kay,  7  H.  L.  750;  Wall 

340 ;  Dunbar  ?;.  Treddennick,  2  B.  tfe  B.  v.   Cockerell,    10  11.1.229;   Potts  «. 

317;  Molony  v.  L'Estrange,  Beat.  406;  Surr,  34  Beav.  543. 
Cockerell  v.  Cholmondeley,  1  R.  <fe  M. 


*  Confirmation  and  ratification  imply  knowledge  of  a  defect  in  the  act 
to  be  confirmed  and  of  the  right  to  reject  or  ratify  it.  Cumberland  Coal 
Co.  V.  Sherman,  20  Md.  117. 

The  party  must  be  aware  that  the  act  he  is  doing  will  have  the  eflfeet 
to  confirm  the  transaction.     Cherry  v.  Newsom,  3  Yerg.  369. 

Ratification  is  the  adoption  of  a  previously  formed  contract,  notwith- 
standing a  vice  that  rendered  it  relatively  void ;  and  by  the  very  nature  of 
the  act  of  ratification,  confirmation,  or  affirmance,  the  party  confirming 
becomes  a  party  to  the  contract ;  he  that  was  not  bound  becomes  bound 
by  it,  and  entitled  to  all  the  benefits  of  it.  He  accepts  the  consideration 
of  the  contract  as  a  sufficient  consideration  for  adopting  it,  and  usually 
this  is  quite  enough  to  support  the  ratification.  Pearsoll  v.  Chapin,  44 
Penn.  9. 

t  Hoffman  Steam  Coal  Co.  v.  Cumberland  Coal  Co.  16  Md.  456;  Cum- 
berland Coal  Co.  V.  Sherman,  20  Md.  117 ;  Williams  v.  Reed,  3  Mason,  405; 
Butler  t).  Haskell,  4  Dessau.  651;  Cumberland  Coal  Co.  ®.  Sherman,  30 
Barb.  533 ;  McCormiok  v.  Malin,  5  Blackf  509 ;  Brodduc  v.  Call,  3  Call, 
546;  Boyd  v.  Hawkins,  2  Dev.  Eq.  195;  Rainsford  ®.  Rainsford,  Spears' 
Ch.  385. 

Confirmation  must  be  a  solemn  and  deliberate  act.  When  the  original 
transaction  is  infected  with  fraud,  the  confirmation  of  it  is  so  inconsistent 
20 


298  LOSS  OF  EIGHT  TO  IMPEA.CH 

by  deed.*  If  an  independent  legal  adviser  be  employed,  it 
will  be  assumed  that  he  had  satisfied  himself  before  approving 
of  the  transaction,  that  it  was  for  the  benefit  of  his  client  to 
confirm  it.' 

RELEASE. 

The  same  requisites  which  are  necessary  to  render  a  con- 
firmation valid,  are  necessary  to  render  a  release  valid.^* 

ACQUIESCENCE. 

It  is  not  necessary,  in  order  to  render  a  transaction  unim- 
peachable, that  any  positive  act  of  confirmation  or  release 
should  take  place.  It  is  enough,  if  proof  can  be  given  of  a 
fixed  and  unbiassed  determination  not  to  impeach  the  transac- 
tion.    This  may  be  proved,  either  by  acts  evidencing  acqui- 


'  stump  V.  Gaby,  2  D.  M.  &  G.  623.  man  v.  Palling,  3  Atk.  423 ;  Bowles  v. 

See  Waters  v.  Thorn,  22  Beav.  547.  Stuart,  1  Sch.  &  Lef.  209 ;  CNeill  v. 

«  Stanes  v.  Parker,  9  Beav.  388;  De  Hamill,  Beat.  618;  Williams  v.  Smith, 

Montmorency   v.   Devereux,   7   CI.    &  1  L.  J.  Ch.  129;   Wedderburn  i).  Wed- 


Finn.  188;  Aspland  v.  Watte,  20  Beav, 
474. 

^  Lloyd  V.  Attwood,  3D.  <fe  J.  614 
Spaekman's  Case,  34  L.  J.  Ch.  329 
Far  rant  v.  Blanch  ford,  1  D.  J.  &  S, 
119;  Aveline  v.  Melhiiish,  2  D.  J.  <fe  S, 
289.  See  Salkeld  v.  Vernon,  1  Eden 
64;  Broderick  v.  Brodeiick,  1  P.   W. 


derburn,  2  Keen,  728,  4  M.  &  C.  41 ; 
Millar  v.  Craig,  6  Beav.  433 ;  Stanes  v. 
Parker,  9  Beav.  385 ;  Todd  v.  Wilson, 
ib.  486;  Lindo  v.  Lindo,  1  Beav.  496; 
Duke  of  Leeds,  v.  Amherst,  2  Ph.  117; 
Thornber  v.  Sheard,  12  Beav.  589; 
Parker  v.  Bloxam,  20  Beav.  295  ;  Asp- 
land  V.  Watte,  ib.  480;   Eyre  v.  Bur- 


239;   Cocking  v.   Pratt,    1   Ves.  400;       mester,  10  H.  L.  106;  Skilbeck  v.  Hil- 
Heron  v.  Heron,  2  Atk  160;   Pusey  v.       ton,  2  L.  R.  Eq.  587. 
Desbouverie,  3  P.  Wms.  315;   Stead- 


witli  justice,  and  so  likely  to  be  accompanied  with  imposition,  that  the 
courts  watch  it  with  the  utmost  strictness,  and  do  not  allow  it  to  stand 
but  on  the  clearest  evidence.  Cumberland  Coal  Co.  v.  Sherman,  20 
Md.  117. 

The  legal  title  is  supreme  until  attacked.  If  the  injured  party  ratifies 
the  original  transaction,  the  abandonment  of  his  equitable  claims  removes 
all  doubt  from  the  legal  title,  and  it  is  as  if  suspicion  or  embarrassment 
had  never  attached  to  it.     Comstock  v.  Ames,  3  Keyes,  357. 

*  Michoud  V.  Girod,  4  How.  503 ;  Bradley  v.  Chase,  23  Me.  511 ;  Parson 
«.  Hughes,  9  Paige,  591. 


ON  THE  GROUND  OF  FRAUD.  299 

escence,    or   by   the   mere   lapse   of  time   during   wliicli  the 
transaction  has  been  allowed  to  stand.^ 

Acquiescence  or  delay  for  a  length  of  time  after  a  man  is  in 
a  situation  to  enforce  a  right,  and  with  a  full  knowledge  of 
facts,  is,  in  equity,  cogent  evidence  of  a  waiver  and  abandon- 
ment of  the  right.^  *  If  a  voidable  contract,  or  other  transac- 
tion, is  voluntarily  acted  on,  with  a  knowledge  of  all  the  facts, 
in  the  hope  that  it  may  turn  out  to  the  advantage  of  a  party 
who  might  have  avoided  it,  he  may  not  avoid  it  when,  after 
abiding  that  event,  it  has  turned  out  to  his  disadvantage.^f 

'  Vanderplank  v.  King,  8  D.  M.  <fe  G.  land  v.  Siddall,  3  D.  F.  <fe  J.  73 ;  Skot- 

133.  ,  towe  V.  Williams,  ib.  535. 

•'  Duke  of  Leeds  v.  Lord  Amherst,  2  ^  Ormes  v.  Beadel,  2  D.  F.  <fe  J.  336, 

Ph.  117,  123;  Life  Association  of  Scot-  per  Lord  Campbell. 


*  Crozier  v.  Acer,  7  Paige,  137;  Davis  v.  James,  4  J.  J.  Marsli.  81 ;  Pol- 
lard V.  Rogers,  4  Call,  239;  MoflFatt  v.  Winslow,  7  Paige,  124;  Saddler  v. 
Robinson,  2  Stew.  520 ;  Ayres  r.  Mitcliell,  3  Smed.  &  Mar.  383 ;  Moore  v. 
Reed,  2  Ircd.  Eq.  580;  McNaiigliton  v.  Partridge,  11  Ohio,  223;  Knuckolls 
V.  Lea,  10  Humph.  577;  Dougherty  v.  Dougherty,  3  Halst.  Ch.  G27. 

t  Bruce  v.  Davenport,  3  Kcyes,  472 ;  Collier  «.  Thompson,  4  Mon.  81 ; 
Finley  v.  Lynch,  2  Bibb,  5G6  ;  De  Armand  v.  Philips,  Walker's  Ch.  186; 
Blydenburch  v.  Welsh,  1  Bald.  331 ;  Edwards  v.  Roberts,  7  Smed.  &  Mar. 
644 ;  Railroad  Co.  r.  Rowe,  24  Wend.  74. 

A  vendor  by  bringing  suit  and  recovering  judgment  for  the  purchase 
money,  ratifies  and  confirms  the  sale.  Nelson  v.  Carrington,  4  Munf.  332; 
Sanger  v.  Wood,  3  Johns.  Ch.  416;  Pettus  v.  Smith,  4  Rich.  Eq.  197. 

The  matter  of  waiver  is  not  a  conclusion  of  law  from  any  particular 
incident,  but  a  conclusion  of  fact  deducible  from  all  the  acts  of  a  party  as 
evidence  of  his  intention.     Crawley  v.  Timberlake,  2  Ired.  Eq.  460. 

A  party  is  bound  to  be  prompt  in  communicating  the  fraud  when  dis- 
covered, and  consistent  in  his  notice  to  the  o])posile  party  of  the  use  he 
intends  to  make  of  it.  Carroll  v.  Rice,  Walker's  Ch.  373 ;  Disbrow  v. 
Jones,  Harring.  Ch.  102;  Street  v.  Dow,  Harring.  Ch.  427;  Wingate  v. 
King,  10  Shep.  95  ;  Cain  v.  Guthrie,  8  Blackf.  409;  Alexander  v.  Ultez,  7 
Ired,  Eq.  242 ;  Fratt  v.  Fiske,  17  Call.  380. 

A  party  seeking  the  rescission  of  a  contract  for  fraud,  must  act  with 
vigilance  and  promptness,  and  return,  or  offer  to  return,  (he  jiroperty  to 
the  vendor  within  a  reasonable  time  after  the  discovery  of  the  fraud.  If 
the  vendee  keeps  it  and  treats  it  as  his  own  by  putting  it  up  for  sale,  or 
exercismg  other  acts  of  ownership  over  it,  he  caunot  afterwards  rescind 


300  LOSS  or  EIGHT  TO  IMPEACH 

To  fix  acquiescence  upon  a  party  it  must  unequivocally 
appear  that  lie  knew  or  bad  notice  of  tlie  fact  upon  which  the 
alleged  acquiescence  is  founded,  and  to  which  it  refers.*  Ac- 
quiescence imports  and  is  founded  on  knowledge.  A  recogni- 
tion resulting  from  ignorance  of  a  material  fact  goes  for 
nothing.  The  question  as  to  acquiescence  cannot  arise  unless 
the  party  against  whom  it  is  set  up  was  aware  of  his  rights.  A 
man  cannot  be  said  to  acquiesce  in  what  he  does  not  know, 
nor  can  he  be  bound  by  acquiescence  unless  he  is  fully  ap- 
prised as  to  his  rights  and  all  the  material  facts  and  circum- 
stances of  the  case.^* 

*  Randall  v.  Errington,  10  Ves.  428;  Honner  v.  Morton,  3  Russ.  65;  Cocter- 

Spackman's   Case,    34  L.   J.    Ch.  321,  ell  v.  Cholmeley,  Taml.  435 ;   Austin  v. 

326 ;    Stanhope's   Case,   L.    R.    1    Ch.  Chambers,  6  CI.  &  Fin.  1  ;   Charter  v. 

App.  161;  Stewart's  Case,  L.  R.  1  Ch.  Trevehan,  11  Ch  <fe  Fin    714;  Cockel] 

App.  514.  V.  Taylor,  15  Beav.   122;  Burrows  v. 

"  Randall  v.  Errington,  10  Ves.  426;  Walls,  5  D.  M.  &.  233;   Lloyd  v.  Att- 

Blennerhassett  v.  Day,  2  B.  <fe  B.  104;  wood,  3  D.  A  J.  614;   Savery  v.  King, 

Cholmondeley  v.  Clinton,  2   Mer.  361;  5  H.  L.  62V;   Bright  v.  Legerton,  2  D. 


the  contract.  Dill  «.  Camp,  22  Ala.  249 ;  Taymon  v.  Mitchell,  1  Md,  Ch. 
496;  Clement  v.  Smith,  9  Gill,  156  ;  McCulloch  v.  Scott,  13  B.  Mon.  172. 

An  offer  to  return,  made  through  the  medium  of  the  post-office,  ia 
equivalent  to  a  personal  offer,  and  secures  to  the  vendee  every  benefit  re- 
suiting  from  it.     Bamett  v.  Stanton,  2  Ala.  181. 

When  the  vendee,  upon  offering  to  return  the  property,  ia  informed 
that  it  will  not  be  received,  he  need  not  perform  the  vain  and  idle  task  of 
making  a  personal  tender.     Tibbs  v.  Timberlake,  4  Litt.  12. 

A  purchaser,  after  an  offer  to  return,  must  deliver  the  goods  to  the 
vendor  upon  a  reasonable  demand,  and  a  refusal  to  surrender,  destroys  the 
effect  of  the  previous  tender.     Bennett  v.  Fail,  26  Ala.  605. 

A  party  is  only  bound  to  the  extent  of  his  acquiescence ;  beyond  that, 
he  is  entitled  to  relief     Pollard  v.  Rogers,  4  Call,  239. 

*  Flagg  v.  Mann,  2  Sumner,  486  ;  Shackelford  v.  Handley,  1  A.  K. 
Marsh.  495;  Shipp  v.  Swan,  2  Bibb,  82;  Garvin  v.  Lewez,  7  Smed.  & 
Mar.  24. 

A  party  must  use  reasonable  diligence  to  ascertain  the  facts,  Buford 
V.  Brown,  6  B.  Mon.  553. 

A  party  can  not  justly  be  regarded  as  confirming  a  contract  believed 
to  be  fraudulent  because  he  did  not  repudiate  it  at  an  earlier  period  upon 
a  mere  violent  presumption  of  fraud  instead  of  waiting  until  he  can  clearly 
establish  it.    Irving  v.  Thomas,  6  Ship.  418. 


ON  THE  GKOUXD  OF  FRAUD.  301 

'Nor,  indeed,  is  a  recognition  of  avail  whicli  assumes  the 
validity  of  a  transaction,  if  the  question  as  to  its  validity  does 
not  appear  to  have  come  before  the  parties.*  The  mere  fact 
that  a  man  may  have  heard  unfavorable  rumors,  and  con- 
ceived suspicions,  is  not  enough  to  fix  him  with  acquiescence.' 
The  proof  of  knowledge  lies  on  the  party  who  alleges  acquies- 
cence, and  sets  it  up  as  a  defence.'  If  the  transaction  has 
taken  place  under  pressure,  or  the  exercise  of  undue  influence, 
it  must  clearly  and  unequivocally  appear  that  the  party 
against  whom  acquiescence  is  alleged  was  sui  jinns,  and  was 
released  from  the  influence  or  the  pressure  under  which  he 
stood  at  the, time  of  the  transaction,  and  acted  freely  and  ad- 
visedly in  abstaining  from  impeaching  it.  Acquiescence  goes 
for  nothing  so  long  as  a  man  continues  in  the  same  situation 
in  which  he  was  at  the  date  of  the  transaction.*  But  as  soon 
as  a  man  with  full  knowledge,  or  at  least  with  suflicient  notice 
or  means  of  knowledge,  of  his  rights,  and  of  all  the  material 
circumstances  of  the  case,  freely  aud  advisedly  does  anything 
which  amounts  to  the  recognition  of  a  transaction,  or  acts  in  a 
manner  inconsistent  with  its  repudiation,  or  lies  by  for  a 
considerable  time,  and  knowingly  and  deliberately  permits 
another  to  deal  with  the  property,  or  incur  expense,  under  the 
belief  that  the  transaction  has  been  recognized,  or  freely  and 

F.  &  J.  617 ;  Life  Association  of  Scot-  S  D.  F.  «fe  J.  58;  Wall  v.  Cockerell,  10 
land  V.  Siddall,  3  D.  F.  <fe  J.  74;  Bui-  H.  L.  229;  Spackman's  Case,  34  L.  J. 
lock  V.  Downes.  9  H.  L.    1 ;  Wall  v.  .    Ch.  329. 

Cockerell,  10   H.    L.    229;    Berdoe   v.  ■»  Gowland  v.  De  Faria,  17  Ves.  25; 

Dawson,    34   Beav.    603;    Vyvyan    v.  Grco-ory  «.  Gregory,  Coop.  201;  Roche 

Vy  vynn,    30    Beav.    65 ;    Spackman's  v.  O'Brien,  1  H.  &  B.  338  ;  Aylward  v. 

Case,  34  L.  J.  Ch.  329;  Stewart's  Case,  Kearney,  2  B.   <fe  B.  463;    Palmer  v. 

L.  R.  1  Ch.  App.  514;  supra,  p.  132.  Wheeler,  ib.  31;   Honner  v.  Morton,  3 

'  Ilonner    v.    Morton,    3    Uuss.    65;  Russ.  65;  Duke  of  Leeds  y.  Lord  Am- 

Wright  V.  Vanderpl;mk,  8  D.  M.  &  G.  herst,  2  Ph.  117;   Addis  v.  Campbell,  4 

133.     See  Baker  v.  Bradley,  7  D.  M.  <fe  Beav.  401  ;  Roberts  v.  Tunstall,  4  Ha. 

G.  697.  257 ;   Salmon   v.  Cutts,  4  Deg.  &  Sra. 
'  Central  Railway  Co.  ofVenezuela  «.  132;  Wright  v.  Vanderplauk,  8  D.  M. 

Kisch,  L.  R.  2  App.  Ca.  112.  &  G.   133  ;   Eyre  v.  M'Donnell,  15  Ir. 

'  Bennett  v.  Colley,  2  M.  &  K.  225;  Ch.  534;   Berdoe  v.  Dawson,  34  Beav. 

Burrows  v.  Walls,  5  D.  M.  &  G.  233 ;  6U3. 
Life  Association  of  Scotland  v.  Siddall, 


302  LOSS  OF   EIGHT  TO  IMPEACH 

advisedly  abstains  for  a  considerable  lapse  of  time  from  im- 
peaching it,  there  is  acquiescence,  and  the  transaction,  although 
originally  impeachable,  becomes  unimpeachable  in  equity.^  If, 
for  instance,  a  man  after  discovering  that  the  representations 
in  a  prospectus,  on  the  faith  of  which  he  has  purchased  shares 
arc  false,  deals  "with  the  shares  as  owner,  by  instructing  a 
broker  to  sell  them,^  or  concurs  in  the  appointment  of  a 
committee  of  investigation  into  the  affairs  of  the  company 
on  behalf  of  the  shareholders,^  there  is  acquiescence.  So 
where  a  party,  with  full  knowledge  of  the  misrepresentations 
alleged  to  have  been  made,  by  his  conduct  agrees  to  treat  the 
transaction  as  binding,  he  is  precluded  in  equity  from  insisting 
on  the  misrepresentation  in  a  suit  for  specific  performance.* 
And  where  plaintiffs  sought  to  avoid  an  agreement  for  the 
lease  of  a  mine,  on  the  ground  of  fraudulent  misrepresentation 
of  its  value,  it  was  held  that  having  continued  to  work  the 
mine  after  full  knowledge  of  all  the  circumstances  of  the  fraud, 
they  were  not  entitled  to  relief^ 

The  equitable  rule  as  to  acquiescence  applies  with  peculiar 
force  to  the  case  of  property  which  is  of  a  speculative  charac- 
ter, or  is  subject  to  contingencies,  and  can  only  be  rendered 
productive  by  a  large  and  uncertain  outlay.* 

'  Selsey  v.  Rliorles,  1  Bligh,  N.  S.  1;  Mousley,  31  L.  J.  Ch.  543;  Ernest  v. 

Bellew  V.    Russell,    1    Ba.   &  Be.  96;  Vivian,    38    L.    J.    Ch.   613;   Wall  v. 

Blcnnerhassctt  v.  Day,  2  Ba.  <fe  Be  118;  Cockerel!,  3  D.  F.  <fe  J.  742. 

Vigcrs  V.  Pike,  8  Cl.'&  Fin.  652 ;  Char-  *  Ex-parie  Briggs,  L.  R.  1  Eq.  483. 

ter%'.  Trevelyan,   11  01.  <fe  Finn.  714  ;  '  Lawrence's  Case,  L.  R.  2  Ch.  App. 

Champion  v.  Rigby,  Taml.  421,  9  L.  J.  424. 

Ch.  N.  S.   211;   Maden  v.  Veevers,  5  *  Macbryde  t;.  Weekes,  22  Beav.  533. 

Beav.   511 ;   Nagle  v.  Baylor,  3  Dr.  <fe  *  Vigers  v.  Pike,  8  CI.  <fe  Finn.  562. 

War.  60;  Edwards  v.   Mej'rick,  2  Ha.  'Norway    v.   Rowe,    19   Ves.    144; 

75 ;  Loader  v.  Clark,  2  Mac.  &  G.  387 ;  Small  v.  Attwood,  6  CI.  &  Finn.  232, 

Stone  V.   Godfrey,   5  U.  M.  &  G.  76 ;  359 ;  Prendergast  v.  Turton,  1  Y.  &  C. 

Lyddon  v.  Moss, '4  D.  &  J.  104;   Dims-  C.  C.  98,  ]3  L.   J.  Ch.   268;  Lovell  v. 

dale  V.   Dimsdale,  3  Drew.   556;   Far-  Hicks,    2   Y.    &   C.   46;    Jennings  v. 

rant  v.  Blanchford,   1  1).  J.  &.  S.  107;  Broughton,   5  D.  M.  &  G.  140;   Clegg 

Archbold  v.  Scully,  9  H.  L.  360.     8ee  v.   Edmondson,    8   D.    M.    <fe  G.  787 ; 

Plenderleath  v.  Eraser,  3  V.  &  B.  174;  Clements  v.  Hall,  2  D.  <fe  J.  173  ;  Gros- 

Bernal  v.  Lord  Donegal,  3  D<iw.  133;  venor  i).  Sberratt,  28  Beav.  659;  Whal. 

Ba3'ne  v  Ferguson,  5  Dow.  151;  Pear-  ley  v.  Whalley,  2  D.  F.  <fe  J.  310. 
Bon  V.  Benson,  28  Beav.  598 ;  Gresley  v. 


ON  THE  GEOUND  OF  FRAUD.  303 

The  representatives  of  a  man  who  has  acquiesced  in  a 
particular  transaction,  cannot  be  in  a  better  position  than  the 
man  himself.^ 

So,  also,  may  a  remainder-man  be  bound  by  acquiescence.^ 
But  there  is  no  acquiescence,  if  the  remainder-man  acts  in  a 
transaction  merely  as  an  attorney  of  the  tenant  for  life.* 

The  doctrine  of  acquiescence  applies  even  as  between 
trustee  and  cestui  que  trusty  even  in  cases  of  express  trusts.* 
A  cestui  que  trust,  whose  interest  is  reversionary,  though  not 
bound  to  assert  his  title  until  he  comes  into  possession,  is  not 
less  capable  of  giving  his  assent  to  a  breach  of  trust  while 
the  interest  is  in  reversion,  than  when  it  is  in  possession. 
"Whether  he  has  done  so  or  not  depends  on  the  facts  of  each 
particular  case.^ 

DELAY  AND  LAPSE  OP  TIME. 
The  mere  lapse  of  time  during  which  a  transaction  hag 
been  allowed  to  stand,  may  render  it  unimpeachable  in  equity. 
A  man  who  seeks  the  aid  of  a  court  of  equity,  must  assert  his 
claim  with  reasonable,  diligence.®  *  It  is  a  rule  of  equity  not 
to  encourage  stale  demands,  or  give  relief  to  parties  who  sleep 
on  their  rights.    The  rule  is  founded  ^on  the  difficulty  of  pro- 

'  Walmesley  v.  Booth,   2  Atk.  25 ;  *  Life  Association  of  Scotland  v.  Sid* 

Bellew  V.  Russell,  1  Ba.  <fe.Be.  9G.  dall,  3  D.  F.  <fe  J.  58,  73. 

*  Shannon  v.  Bradstreet,  1  Sch.  <fe  "  Smith  v.  Clay,  cit.  3  Bro.  C.  C.  639 ; 
Lef.  73.  Jones  v.   Turberville,   2   Ves.   Jr.    11; 

'  Liebman  v.  Harcourt,  2  Mer.  520.  Herey  v.  Dinwoody,  ib.  87 ;  Underwood 

*  Walker  v.  Syrnonds,  3  Sw.  64,  75;  v.  Lord  Courtown,  2  Sch.  &  Lef.  71; 
Bnrrows  v.  Walls,  5  D.  M.  &  G.  233;  Hickes  v.  Cooke,  4  Dow.  16;  Chalmer 
Farrant  v.  BlancLford,  I  D.  J.  <fe  S.  v.  Bradley,  1  J.  <fe  W.  59 ;  Walford  v 
107.  Adie,  5  Ha.  112. 


*  Piatt  V.  Vattier,  9  Pet.  405  ;  s.  c.  1  McLean,  40 ;  Liipton  v.  Janney,  13 
Pet.  381;  Wade  v.  Pettibono,  11  Ohio,  557;  s.  c.  14  Ohio,  557;  McLean  v. 
Barton,  Harring.  Ch.  379 ;  Badger  v.  Badger,  2  Wall.  87 ;  Hawley  v. 
Cramer,  4  Cow.  717  ;  Coleman  v.  Lyne,  4  Rand.  454  ;  Johnson  v.  Johnson,  5 
Ala.  90  ;  Graham  v.  Davidson,  2  Dev.  &  Bat.  Eq.  155;  McKnight  v.  Taylor,  1. 
How.  IGl ;  Jenkins  v.  Pye,  13  Pet.  241. 


304  LOSS  or  RIGHT  TO  IMPEACH 

curing  full  evidence  of  the  character  and  particulars  of  remote 
transactions,  and  is  independent  of  the  Statute  of  Limita- 
tions.^ *  In  the  case  of  legal  titles  and  legal  demands,  courts 
of  equity  act  in  obedience  to  the  Statutes  of  Limitations  ;  ^  f 
but  if  the  demand  is  not  of  a  legal  nature,  or  is  strictly  equit- 
able, the  Statutes  of  Limitations  are  not  a  bar  in  equity. 
Coui'ts  of  equity,  however,  look  to  them  as  guides,^  and 
assimilate  their  rules  as  far  as  they  can,  and  as  far  as  the  trans- 
actions will  admit,  to  the  law/  :|:  "Where  a  bar  exists  by 
statute,  ec|uity  will,  in  analogous  cases,  consider  the  equitable 
rights  as  bound  by  the  same  limitations  ;  ^  §  but  in  cases  where 
the  analogies  of  law  do  not  apply,  a  court  of  equity  is 
governed  by  its  own  inherent  doctrine  not  to  encourage  stale 
demands.     Parties  who  would  have  had  the  clearest  title  to 

'  Hovenden  v.  Lord  Annesley,  2  Sch.  '  Hovenden  v.  Lord  Annesley,  2  Scb. 

&  Lef.  630;  Beckford  v.  Wade.  17  Yes.  &  Lef.  631 ;  Foley  v.  Hill,  1  Ph.  399. 
8Y;  Chalmer  I'.  Bradley,  1  J.  ife  W.  63;  Mlainiltou    v.    Grant,    3    Dow.    33; 

Hickes  V.  Cooke,  4  Dow.  16;  Rancliffe  Whallcy  v.  Whalley,  3  Bligh,  17. 
V.  Parkins,  6  Dow.  149,  232  ;  Whalley  *  Cholmondeley  v.  Clinton,   4  Bligh, 

V.  Whalley,  3  Bligh,  17;  Cholmondeley  1,  95 ;  Brooksbank  v.  Smith,  2  Y.  &  C. 

V.  Clinton,  4    bligh,  119  ;  Gibbering  ;;.  60. 

Earl  of  Balcarres,  3  Deg.  &  S.  735;  *  Smith  t>.  Clay,  cit.  3  Bro.  C.  C.  639; 

Browne  v.  Cross,  14  Beav.  105;  Hart-  Hovenden  v.  Lord  Annesley,  2  Sch.  & 

•well  z;.  Colvin,  IGBeav.  140;  Beaden  y.  Lef.   607,   632;  Whalley  y.  Whalley,   3* 

King,  9  Ha.  532;  Knight  v.  Bowyer,  2  Bligh,  17  ;  Cholmondeley  v.  Clinton,  4 

D.  &  J.  421,  443  ;  Gresley  v.  Mousley,  Bligh,  1,  119;  Gibbering  v.  Earl  of  Bal- 

4  D.  &  J.   78;  Harcourt  v.  Wliite,   28  carres.  3  Deg.  <fe  S.  735 ;  Duke  of  Leeds 

Beav.  312;  Skottowe  v.  Williams,  3  D.  v.  Lord  Amherst,  2  Ph.  117. 
F.  &  J.  535. 


*  Prevost  V.  Gratz,  6  Wheat.  481 ;  Randolph  v.  "Ware,  8  Cranch,  503 ; 
Weatlierford  v.  Tate,  3  Strobh.  Eq.  27;  Peacock  v.  Black,  1  Halst.  Ch.  535; 
3  GreeQ'sCh.  61 ;  Bond  v.  Brown,  1  Harp.  Ch.  270;  Page  v.  Booth,  1  Rob. 
161  ;  Ludlow  V.  Cooper,  13  Ohio,  552 ;  Graham  v.  Torreance,  1  Ired.  Eq. 
210 ;  Sbearin  r.  Eaton,  3  Ired.  Eq.  282. 

t  Peyton  v.  Stith,  5  Pet.  485  ;  Humbert  v.  Trinity  Church,  7  Paige,  195; 
8.  c.  24  Wend.  587 ;  Hawley  v.  Cramer,  4  Cow.  717. 

I  Kane  v.  Bloodgoocl,  7  Johns.  Ch.  00;  Elmendorf  ».  Taylor,  10  Wheat. 
152 ;  Hunt  v.  WickliflFe,  2  Pet.  201 ;  Varlick  v.  Edwards,  1  Hoff.  Ch. 
383. 

§  ]\ncboud  V.  Girod,  4  How.  503  ;  Miller  v.  Mclntyre,  6  Pet.  Gl ;  Bowman 
e.  Wathen,  1  How.  189;  Perkins  v.  Cartmell,  4  Harring.  270. 


ON  THE  GEOUND  OF  FEAUD.  305 

relief,  liad  tliey  come  in  reasonable  time,  may  deprive  tliem- 
Belves  of  their  equity  by  a  delay  which  falls  short  of  the  period 
fixed  by  the  statutes.^  Lapse  of  time,  when  it  does  not  operate 
as  a  positive  or  statutory  bar,  operates  in  equity  as  an  evidence 
of  assent,  acquiescence,  or  waiver.^  The  two  propositions  of 
bar  by  length  of  time,  and  bar  by  acquiescence,  are  not  dis- 
tinct propositions.  They  constitute  but  one  proposition.^ 
Acquiescence,  however,  as  distinguished  from  delay,  imports 
conduct.'* 

The  rule  that  a  man  who  sleeps  on  his  rights  cannot  come 
to  a  court  of  equity  for  relief,  holds  good  not  only  in  circum- 
stances where  the  length  of  time  would  render  it  extremely 
difficult  to  ascertain  the  true  state  of  the  fact,  but  where  the 
true  state  of  the  fact  is  easily  ascertained,  and  where  it  is 
perfectly  clear  that  relief  would  have  been  given  had  there 
been  no  delay .^ 

No  precise  or  defined  limit  of  time  can  be  stated  within 
which  the  interposition  of  the  court  must  be  sought.  What 
is  a  reasonable  time  cannot  M'ell  be  defined  so  as  to  establish 
any  general  rule,  and  must  in  a  great  measure  dejDcnd  upon 
the  exercise  of  the  sound  discretion  of  the  court  under  all  the 
circumstances    of   each    particular    case.^  *     In    Gregory  v. 

» Oliver  v.  Court,  8  Pri.   167,  168;  Wcntworth  v.  Lloyd,   32  Beav.   467; 

Gresoryi).  Gregory,  Coop.  201 ;  Hickes  Downcs  v.  Jennings,  ib.  290. 
V.  Cooke,  4  Dow.  16  ;  Wlialley  v.  Wlial-  ^  Pickering  v.  Lord  Stamford,  2  Ves. 

ley,  3  Pligh,  17  ;  Cliolmondeley  v.  Clin-  Ji.   683  ;    Gregory   v.    Gregorv,   Coop, 

ton,  4  Bli^-h,  1,  95  ;  Ciiami)i()n  v.  Uigby,  201  ;  Whalley'w.  Whalley,  3  Bligh,  1, 

9L.  J.  Ch.X.  S.  211;   Sibhering  w.  Earl  13;  Roberts    v.    Tunstalj.   4    Ha.   257; 

of  Bilcarres,  3  Deg.  <fe  S.  735;  Roberts  Life  Association  of  Scotland  v.  Siddall, 

V.  Tunstail,  4  lla.  257  ;  Browne  v.  Cross,  3  D.  F.  <fe  J.  73.     See   Stewart's  Case, 

14  Beav.  liiO;   Ilarlwell  v.   Colvin,   16  L.  R    1  Ch.  App.  513. 
Beav.    140;  Haker  v.  Read,   18  Beav.  '  Life  Association  of  Scotland  v.  Sid- 

898;  Wright  v.  Vanderplank,   8  D.  M.  dall,  3  D.  F.  &  J.  1Z,per  Turner,  L.J. 
&  G.  133 ;  Gresley  v.  Mousley,  4  D.  <fe  *  Lyddon  v.  Moss,  4  D.&J.  104.  See 

J,  78;   Lyddon  w.  Moss,   ib.   101;  liar-  Murray  t).  Palmer,  2  Sch.  <fe  Lef.  486 ; 

court  V.  White,  28  Beav.  312  ;  Cleggt-.  Archbold  v.  Scully,  9  H.  L.  360 
Edmondson,   8  I).  M.  &  G.  810;  Clan-  '  Beckford  v.  Wade,  17  Ves.  87,  97. 

ricarde   v.   llenning,    30    Beav.    175;  '  Gresley  y.  Mousley,  4  D.  <fe  J.  78. 


*  Hawley  v.  Cramer,  4  Cow.  717 ;  Rauks  v.  Judali,  8  Ct.  145;  Hallett  v. 


o06  LOSS  OF  EIGHT  TO  IMPEACH 

Gregory/  Sir  TV.  Grant,  M.  R.,  refused  to  set  aside  a  purchase 
by  a  trustee  after  a  lapse  of  eighteen  years.  So  in  Selsey  v. 
Rhoades,^  where  a  lease  was  granted  to  a  steward,  and  eleven 
years  had  elapsed,  the  court  refused  to  set  the  lease  aside, 
though  there  were  special  circumstances  in  the  case.  So  in 
Baker  v.  Reed,^  a  bill  filed  after  the  lapse  of  seventeen  years, 
to  set  aside  a  purchase  of  a  testator's  estate  by  his  executor 
at  an  undervalue,  was  dismissed  on  the  ground  of  delay.*  The 
question  as  to  delay  may  be  much  affected  by  reference  to  the 
nature  of  the  property,^  or  to  the  change  of  circumstances  as 
to  the  character  or  value  of  the  property  in  the  intermediate 
period.®  *  A  delay  which  might  have  been  of  no  consequence 
in  an  ordinary  case,  may  be  amply  sufficient  to  bar  the  title  of 
relief,  when  the  property  is  of  a  speculative  character,  or  is 
subject  to  contingeucies,'  or  where  the  rights  and  liabilities  of 
others  have  been  in  the  meantime  varied.^  If  the  property  is 
of  a  speculative  or  precarious  nature,  it  is  the  duty  of  a  man 
complaining  of  fraud   to   put   forward  his  complaint  at  the 

'  Coop.  201.  C\egg  V.  Edmondson,  ib.  807;  Ernest  v, 

»  2  Sim.  &  St.  41 ;  1  Bligh,  N.  S.  1.  Vivian,  33  L.  J.  Cli.  513. 

^  18  Beav.  398.  °  Hickes  v.  Cooke,  4  Dow.  16  ;  Went- 

*  See  Purcell  v.  Macnamara.  14  Ves.  worth  v.  Lloyd,  32  Beav.  467 ;  llidgway 

91 ;  Oliver  v.  Court,  8Pri.  127  ;  Molony  v.  Newstead,  3  D.  F.  <t  J.  474. 

V.  L'Estrange,  Beat.  406  ;  Gillett  v.  Pep-  '  Attwood  v.  Small,  6  CI.  tfe  Fin.  232, 

percorn,  3  Beav.  78;  Roberts  »'.  Tun-  357;    Walford   v.    Adie,    5    Ha.    112; 

stall,  4  Ha.  257  ;  Mathew  v.  Prise,  14  Preiidergast  v.  Tarton,  1  Y.  <fe  C.  C.  C. 

Beav.  343  ;  Aspland  v.  Watte,  20  Beav.  98  ;  13  L.  J.  Ch   268  ;  Clegjj  v.  Edmond- 

480;  Allfrev   ".  Alllrej',    1  Mac.  <fe  G.  son,  8  D.  M.  AG.  787  ;  Clements  v.  Hall, 

87 ;  Barwell  v.  Barwell,  34  Beav.  371 ;  2  D.  &  J.  173  ;  Ernest  v.  Vivian,  33  L. 

Potts  V.  Surr,  ih.  543 ;  Proctor  v.  Robin-  J.  Ch.  513. 

son,  35  Beav.  335.  "  Ridgway  v.  Newstead,  3  D.  F.  <fe  J. 

^  Hatch  V.  Hatch,  9  Ves.  292  ;  Wrig'it  474.     See  Hickes  v.  Cooke,  4  Dow.  16  ; 

V.   Vanderplank,  8  D.  M.  <fe  G.   133;  Potts -j.  Surr,  34  Beav.  543. 


Collins,  10  How.  174 ;  Michoud  v.  Girod,  4  How.  503  ;  Boone  v.  Chiles,  10 
Pet.  177  ;  Coulsoa  v.  Walton,  9  Pet.  62  ;  King  v.  Morford,  Suxton,  274 ; 
Aylett  V.  King,  11  Leigh,  486  ;  Nelson  v.  Carrington,  4  Munf.  332  ;  Reardon 
V.  Seavy,  1  Litt.  53 ;  Obert  v.  Obert,  1  Beasley,  423. 

*  Wagner  v.  Baird,  7  How.  234 ;  Smith  ».  Thompson,  7  B.  Moh.  305 
Carroll  «).  Rice,   1   Walker's  Ch.  373;  M'Donald  v.  Neilson,  2  Cow.  139; 
Ferson  v.  Sanger,  Davies,  252. 


ON  THE  GROUND  OF  FRAUD.  307 

earliest  possible  time.^  He  cannot  be  allowed  to  remain 
passive,  prepared  to  affirm  the  transaction  if  tlie  concern 
should  prosper,  or  to  repudiate  it  if  that  should  prove  to  his 
advantage.^  *  Parties  who  are  in  the  position  of  shareholders 
in  companies  must,  if  thej  come  to  the  court  to  be  released 
from  their  shares  on  the  ground  of  fraud,  come  with  the 
utmost  diligence  and  promptitude.*  In  the  case  of  companies 
formed  under  the  Companies'  Act,  1862,  persons  who  apply 
for  shares  on  the  faith  of  a  prospectus,  are  bound  to  ascertain 
at  the  earliest  possible  moment  whether  the  memorandum  and 
articles  of  association  are  in  accordance  with  the  prosjjectus. 
If  they  fail  to  do  so,  and  the  objects  of  the  company  are 
extended  beyond  those  described  in  the  prospectus,  the  persons 
who  have  so  taken  shares  on  the  faith  of  the  prospectus  will  be 
held  bound  by  acquiescence.* 

The  question  as  to  delay  may  be  also  materially  affected 
by  reference  to  the  relation  which  subsists  between  the  parties. 
If.  for  instance,  the  transaction  be  between  solicitor  and  client, 
a  delay  which  would  be  fatal  in  other  cases  may  be  permitted, 
for  the  solicitor  must  know  that  the  onus  of  supporting  the 
transaction  will  rest  on  him,  and  that,  if  he  desire  it  to  be 
upheld,  he  must  preserve  the  evidence  which  will  be  required 
to  uphold  it." 

The  rules  of  the  court  as  to  lapse  of  time  being  a  bar  in 

'  Jennin2;s  v.  Broughton,   6  D.  M.  &  Co.  of  Venezuela  v.  Kisch,  L.  E.  2  App. 

G.  126;  Ernest  v.  Vivian,  33  L.  J.  Ch.  Ca.  125. 

513.  '  Peel's  Case,  L.  R,  2  Ch.  App.  684; 

"  Walford  v.  Adie,  5  Ha.  112 ;  Pren-  Cakes  v.  Turquaiul,  L.  R.  2  App.  Ca. 

dergast  v.  Turton,   13  L.J.  Ch.  268;  Z^2,  per  Lord  Chehnsford. 

Cowell  V.  Watts,  19  L.J.  Ch.  455  ;  Law-  '  Gresley  v.   Mou-ley,  4  B.  &  J.  78. 

rence's  Case,  L.  R.  2  Ch.  App.  425.  See   M'Donald   v.    M'iJonald,  1  Bligh, 

'Reese   River    Silver    Miniri;^   Co.,  315;  Morgan  ?j.  Lewes,  4  Dow.  29,  45 ; 

Smitli's  Case,  L.  R.  2  Ch   App.    613;  Champion  w.  Rigby,  9  L.  J.  Ch.  N.  S. 

Denton  v.  Macneil,  L.  R.   2  Eq.   352;  211;  Alllrey  «;.  Allfrey,  1  Mac.  <fe  G.  87. 

Taite^'  C.se,  L.  R.   3  Eq.  795  ;   White-  Comp.  Lyddon  v.  Moss,  4  D.  <fe  J.  104. 
house's  Case,  ib.  794  ;  Central  Pkuilway 


*  Banks  v.  Judah,  8  Ct.  145;  Pintard  v.  Martin,  1  Smed.  &  Mar.  126; 
Rogers  v.  Saunders,  18  Me.  94. 


308  LOSS  OF  RIGHT  TO  IMPEACH 

equity,  apply  to  casea  of  constructive  trust,^  *  and  even  to 
transactions  between  trustee  and  cestui  que  trust  in  respect  of 
the  trust  estate,^  as  well  as  to  ordinary  transactions.  Length 
of  time  can,  however,  have  no  effect  between  trustee  and 
cestui  que  trust,  except  the  trusts  are  properly  executed.' 
There  is  a  wide  distinction  between  trusts  which  are  actual 
and  express,  and  constructive  trusts.  A  trust  by  which  a  man 
undertakes  to  hold  and  apply  property  for  the  benefit  of 
anotlier  is  widely  different  from  the  case  of  ownership,  subject 
to  the  claims  of  another,  if  he  thinks  proper  to  enforce  it.* 
In  the  case  of  continuing  express  trusts,  created  by  act  of 
parties,  no  time  is  a  bar,  for  from  the  privity  existing  between 
the  parties,  the  possession  of  the  one  is  the  possession  of  the 
other,  and  there  is  no  adverse  title.^  f    ISTor  is  length  of  time  a 

*  Hovenden  v.  Lord  Annesley,  2  Sch.  *  Toft  v.  Stephenson,  7  Ha.  15. 
&  Lef.  633 ;  Beckford  v.  Wade,  17  Ves.  *  Cholmondeley  v.  Clinton,  4  Bligh, 
97;  Ex-parte  Ilasell,  3  Y.  &  C.  617;  1 ;  Wedderburn  i;.  Wedderburn,  2Keen, 
Clegg  V.  Edniond^on,  8  D.  M.  &  G.  787 ;  749, 4  M.  <fe  C.  41 ;  Knight  v.  Bowyer, 
Clanricardc  v.  Ilemiing,  30  Beav.  180.  2  D.  <fe  J.  421,  443  ;  Clanricarde  v.  Hen- 
See  Rol  e  V.  Gregory,  34  L.  J.  i  h.  275.  ning,  30  Beav.  175.     See  Att.-Gen.  v. 

^Gregory   v.    Gregory,   Coop.   201;  Fishmongers' Co.,  5  M.  &  C.  16;  Life 

Roberts  v.  Tunstall,  4  Ha.  257  ;  Baker  Association  of  Scotland  v.  Siddall,  3  F. 

V.  Reid,  18  Beav.  398 ;  Barwell  v.  Bar-  &  J.  58,  73;  M'Donnell  v.  White,  11  H 

well,  34  Beav.  371  ;  but  see  Smith  v.  L.  570.     See  Franks  v.  Bollans,  37  L. 

Bakes,  20  Beav.  568.  J.  Ch.  155. 

•Franks  v.  Bollans,  37  L.  J.  Ch.  155. 


*  Farnam  v.  Brooks,  9  Pick.  212  ;  Boone  v.  Chiles,  10  Pet.  177  •  El- 
mendorf  v.  Taylor,  10  Wheat.  152;  Beaubien  v.  Beaubien,  23  How.  190- 
Tate  V.  Connor,  2  Dev.  Eq.  224  ;  Locke  v.  Armstrong,  2  Dev.  &  Bat.  Eq. 
247. 

t  Michoud  V.  Girod,  4  How.  503 ;  Seymour  ®,  Freer,  8  Wall.  202 ;  De- 
couche  V.  Swetier,  3  Johns.  Ch.  190 ;  Cook  v.  Williams,  1  Green's  Ch.  209* 
State  V.  McGowen,  2  Ired.  Eq  9  ;  Pinson  v.  Ivey,  1  Terg.  296  ;  Lexington 
V.  Linds  ly,  2  A.  K.  Marsh  443  ;  Lindsay  v.  Lindsay,  1  Dessau.  150. 

Limitations  begin  to  run  against  a  trust  only  from  the  time  when  it  ig 
openly  disavowed  by  the  trustee,  who  insists  upon  an  adverse  light  and 
interest,  which  is  fully  and  unequivocally  made  known  to  the  cestui  que 
trust.  Oliver  «  Piatt,  3  How.  333  ;  Eane  -o.  Bloodgood,  7  Johns.  Ch.  90  • 
Boone  v.  Chiles,  10  Pet.  90 ;  Taylor  v.  Benham,  5  How.  233 ;  Wade  v. 
Green,  3  Humph.  547. 


ON  THE  GROUND  OF  FRAUD.  309 

bar  where  a  debt  lias  accrued  in  consequence  of  a  violation  of 
confidence  bestowed  in  a  fiduciary  cliaracter.^  But  if  the  trust, 
though  express,  be  not  continuous,  and  the  case  be  one  of  gross 
laches,  the  genei*al  rule  of  equity,  that  encouragement  is  not  to 
be  given  to  stale  demands,  is  equally  applicable.^ 

If  there  be  laches  on  both  sides,  the  ordinary  rules  as  to 
delay  and  acquiescence  may  not  apply .^ 

Time,  however,  does  not  begin  to  run  against  a  man  in 
cases  of  fraud,  until  he  has  knowledge  of  the  fraud.  Time  be- 
gins to  run  only  from  the  discovery.  *  *  The  Statute  of  Limita- 
tions is  no  bar  in  equity  in  cases  of  fraud.^  The  right  of  the 
party  defrauded  is  not  aflfected  by  lapse  of  time,  or,  generally 
speaking,  by  anything  done  or  omitted  to  be  done,  so  long  as 
he  remains,  without  any  fault  of  his  own,  in  ignorance  of  the 
fraud  that  has  been  committed.®    Lapse  of  time  imputed  as 


'  Teed  v.  Beere,  5  Jur.  N.  S.  381.  Ph.  360 ;  Allfrey  v.  Allfrey,  1  Mac.  & 

'  Brijrht  V.  Legerton,   2  D.  F.  &  J.  J.  99 ;  Walsham  v.  Stainton,  1  D.  J.  <fe 

606.     See  M'Donnell  t;.  White,   11  H.  G.  678;  Re  Reese  Silver  Mining  Co., 

L.  570.  Smith's  Case,  1/  R.  2  Ch.  App.  613. 

'  Hiclcs  V.  Morant,  2  Dow  <fe  CI.  414.  '  Sturgis  v.  Morse,  24  Beav.  541. 

*  Blennerhasset  v.  Day,  2  Ba.  &.  Be.  *  Rolfe  v.  Gregory,  84  L.  J.  Ch.  275 

129 ;  Blair  v.  Bromley,  5  Ha.  559,   2  See  Allfrey  v.  Allfrey.  1  Mac.  &  G,  99 


♦  Veazie  v.  Williams,  8  How.  1 34  ;  Wamburzee  v.  Kennedy,  4  Dessau. 
474 ;  Longworth  v.  Hunt,  11  Ohio  St.  R.  194 ;  Pendleton  v.  Galloway,  9 
Ohio,  178;  Haywood  «.  Marsh,  6  Yerg.  69;  Harrell  ».  Kelly,  2  McCord, 
426 ;  Huston  v.  Cantril,  11  Leigh,  136 ;  Eigleberger  v.  Kibler,  1  Hill's  Ch. 
113;  Steele  v.  Kinkle,  3  Ala.  352. 

No  case  can  be  found  in  which  a  court  of  equity  has  refused  to  give 
relief  within  the  lifetime  of  either  of  the  parties  upon  whom  the  fraud  is 
proved,  or  within  thirty  years  after  it  has  been  discovered,  or  becomes 
known  to  the  party  whose  rights  are  affected.  Michaud  v.  Girod,  4  How, 
503. 

The  rule  only  applies  where  the  trust  is  clearly  established,  and  where 
the  facts  have  been  fraudulently  and  successfully  concealed  by  the  trustee 
from  the  cestui  que  trust.     Badger  r.  Badger,  2  Wall.  87. 

Where  a  party  by  Lis  own  fraudulent  acts  and  representations  has  al- 
layed all  reasonable  suspicion  of  his  original  fraud,  and  thus  attempted  to 
obtain  an  unconscious  advantage  by  the  lapse  of  time,  a  court  of  equity 


310  LOSS  OF  RIGHT  TO  IMPEACH 

laches  may  be  excused  by  tlie  obscurity  of  the  transaction, 
whereby  a  man  is  disabled  from  obtaining  full  information  of 
his  rights.^  Time  does  not  begin  to  run  against  a  man,  so  as 
to  bar  the  remedy,  until  he  has  full  information  of  his  rights 
and  injuries,'^*  or  has  in  his  possession  the  means  of  knowl- 

'  Murray  v.  Palmer,  2  Sch.   &  Lef.  v.   Charter,   4   L.   J.    Ch.    N.  S.   209; 

486.  Charter   v.   Trevelyan,    11  Cl.   &   Fin. 

*  Salkeld   v.   Vernon,    1    Eden,    64;  V14 ;  Browne  w.  Cross,   14  Beav.  106; 

Blennerhasset  ?i.  Da}',  2  Ba.  <t  Be.  104,  Parker    v.    Bloxain,    20     Beav,    295; 

119 ;  Whalley  v.  Whalley,  3  Bligh,  1 ;  Savery  v.  King,  5  H.  L.  627. 
O'Neill  V.  Hamill,  Beat.  618 ;  Trevelyan 


will  disregard  the  statute  of  limitations.  Phalen  v.  Clark,  19  Ct  421; 
McClure  T.  Ashby,  7  Rich.  Eq.  430. 

Where  there  is  a  separate  and  distinct  chancery  jurisdiction,  the  ques- 
tion of  fraud  as  a  means  of  preventing  the  eflfect  and  operation  of  the 
Btatute  of  limitations  must  be  referred  to  that  jurisdiction,  and  is  not  to 
be  relied  on  by  -nay  of  rei:)]ication  to  the  plea  of  the  statute  in  a  court  of 
law.     Franklin  v.  Waters,  8  Gill,  322. 

Fraud  can  not  be  replied  to  a  plea  of  the  statute  of  limitations  in  a 
court  of  law.  Troupe  e.  Smith,  20  Johns.  33  ;  Leonard  t\  Pitney,  5  Wend. 
80;  Callis  v.  Waddy,  2  Munf  511 ;  Rice  v.  AVhite,  4  Leigh,  474  ;  Miles  v. 
Barry,  1  HUl  (S.  C),  296;  Hamilton  v.  Smith,  3  Murph.  115 ;  Ruddick  v. 
Leggatt,  3  Murph.  539 ;  Baines  v.  Williams,  3  Ired.  481 ;  Franklin  v. 
Waters,  8  Gill,  322;  Smith  v.  Bishop.  9  Vt.  110;  Lewis  ®.  Houston,  11 
Tex.  642  ;  Campbell  v.  Vining,  23  HI.  525  ;  Way  v.  Cutting,  20  N.  H.  187 ; 
DuYall  V.  Stafford,  4  Bibb,  318.  Contra,  Mass.  Turnpike  Co.  ®.  Field,  3 
Mass.  201;  Livermore  v.  Johnson,  27  Miss.  284;  Cole  v.  McGlathry,  9 
Greenl.  131 ;  Jones  v.  Conoway,  4  Teates,  109  ;  Harrisburg  Bank  v.  Foster, 
8  Watts,  12;  Bucker  «.  Lightner,  40  Penn.  139;  Raymond  v.  Simonson,  4 
Blackf.  85 ;  Mitchell  v.  Thompson,  1  McLean,  85 ;  Sherwood  v.  Sutton,  5 
Mason,  143 ;  Cocke  v.  M"Giuniss,  1  Mart.  &  Yerg.  361;  Fee  «  Fee,  10  Ohio, 
460  ;  Conyers  v.  Kenans,  4  Geo.  308 ;  Persons  v.  Jones,  12  Geo.  371 ,  Har- 
rell  V.  Kelly,  2  McCord,  26. 

The  fraud  that  will  be  sufficient  to  remove  the  bar  of  the  statute  of 
limitations  must  be  actual,  not  constructive  fraud.  Farnam  v.  Brooks,  9 
Pick.  212. 

The  plaintiff  can  not  excuse  his  negligence  by  the  fact  that  the  defend- 
ant knew  all  along  that  he  was  in  the  wrong.  Whatever  the  character  of 
the  injuiT,  and  whether  committed  in  good  or  bad  faith,  the  statute  bases 
itself  on  time.  Humbert  v.  Trinity  Church,  7  Paige,  195;  s.  c.  24  Wend. 
587. 

*  Munson  v.  Hallowell  27  Tex.  457 ;  Tate,  v.  Tate.  1  Dev.  &  Bat.  Eq.  22; 
Croft  V.  Arthur,  3  Dessau.  223. 


ON  THE  GROUND  OF  FRAUD.  311 

edge,^  *  or,  at  least,  has  sufficient  notice  to  put  liim  on  in- 
quiry ,^f  and,  in  cases  where  the  transaction  has  taken  place 
under  pressure,  or  the  exercise  of  undue  influence,  is  emanci- 
pated from  the  dominion  under  which  he  stood  at  the  date  of 
the  transaction.^  The  objection  of  time  is  removed,  so  long  as 
a  man  remains,  without  any  fault  of  his  own,  in  ignorance  of 
his  rights  and  injuries,*  or  is  under  a  legal  disability,^;}:  or  so 
long  as  the  dominion  or  undue  influence  which  vitiated  the 
transaction  is  in  full  force.®  The  mere  fact,  however,  of  the 
poverty  or  pecuniary  embarrassment  of  the  injured  or  de- 
frauded party,  is  not  a  sufficient  excuse  for  delay  ;'§  nor  will 
the  mere  notice  or  assertion  of  a  claim,  unaccompanied  by 

'  Baker  v.  Read,  3  W.  R.  118.  &  Fin.  714;   Allfrey  v.  Allfrey,  1  Mac. 

*Clanricarde  v.  Ilennin^,  30  Beav.  <fe  G.  87;  Bromley  v.  Blair,  16  L.  J. 
175 ;  Spademan's  Case,  34  L.  J.  Ch.  Ch.  108 ;  Mathew  v.  Biise,  14  Beav. 
321,  326 ;  Stanhope's  Case,  L  R.  1  Ch.  343  ;  Rolfe  v.  Gregory,  .34  L.  J.  Cb, 
App.  161.  See  Dosrgett  w.  Emerson,  3  275;  Spademan's  Case,  »6.  320;  Stan- 
Story  (Amer.),  733;  Comp.  Partridge  hope's  Case,  L.  R.  1  Ch.  Ap.  101. 
V.  Usborne,  5  Russ.  195,  232  ;  Re  Reese  '  Duke  of  L  'eds  v.  Lord  Amherst,  2 
River  Silver  Mining  Co.,  Smith's  Case,  Ph.  117;  Neesom  v.  Clarkson,  2  Ha. 
L.  R.  2  Ch.  App.  612.  163  ;  Wright  v.  A''anderplank,  8  D.  M. 

'Gregory   v.   Gregory.  Coop.    201;  &  G.  133;   Gresley  v.  Slousley,  4 D.  <fe 

Dawson   v.    Massey,   1   B.   &   B.  219;  J.  78. 

Roche  V.  O'Brien,  ^ib.  338  ;  Avlward  v.  '  Wright  v.  Vanderplank,  8  D.  M.  <fe 

Kearney,  2   B.   <fe  B.  408;  O'Neill  v.  G.  133;   Gresley  ?'.  Mousley,  4  D.  &  J. 

Hamill.'Beat  618;  Addis  v.  Campbell,  78;  Sharp  v.  Leach,  31  Beav.  491,  See 

4  Beav.  401 ;  Champion  v.  Rigby,  9  L.  Gregory  v.  Gregory,  Coop.  201 ;  Addia 

J.  Ch.  N.  S.  211 ;   Bellamy  v.  Sabine,  2  v.  Campbell,  4  Beav.  401. 
Ph.   425;   Grosvenor   v.  'Sherratt,    28  'Roberts    v.    Tuns^all.    4   Ha.    257; 

Beav.   659;  Sharp  v.  Leach,  31  Beav.  Champion  v.  Rigby,  Taml.  421  ;  9  L.J. 

491.  Ch.  N.  S.  211.     See  Hovenden  v.  Lord 

*  Trevelyan  v.  Charter,  4  L.  J.  Ch.  Annesley,  2  Sch.  &  Lef.  607,  639. 
N.  S.  209  ;  Charter  v.  Trevelyan,  11  CI. 


*  Famam  v.  Brooks,  9  Pick.  212 ;  Hite  v.  Hite,  1  B.  Mon.  177 ;  Shannon 
V.  "White,  6  Rich.  Eq.  96;  Buckner  v.  Ciilcote,  28  IVIiss.  432;  Parkham 
V.  McCrary,  6  Rich.  Eq.  140. 

t  Maxwell  v.  Kennedy,  8  How.  210;  Edmonds  v.  Goodwin,  28  Geo.  38  ; 
Smiths.  Talbot,  18 Tex. 774;  Smith  v.  Fly,  24 Tex.  345;  Whaley  v.  Eliott^ 
1  A.  K  Marsh.  343. 

I  Odder  V.  Walker,  2  H.  &  G.  323 ;  Carr  v.  Bob,  7  Dana,  417  ;  Fall  v. 
Torreance,  2  Hawks,  490. 

There  is  no  equity  from  a  disability  that  was  voluntary  and  self-im- 
posed.    Wagner  v.  Bird,  7  How.  234. 

§  Perry  v.  Crary,  3  Mo.  31G  ;  Locke  v.  Armstrong,  2  Dev.  &  But.  Eq.  147. 


312  LOSS  OF  EIGHT  TO  IMPEACH 

any  act  to  give  it  eifect,  keep  alive  a  riglit  which  would  be 
otherwise  barred.* 

When  time  has  once  begun  to  run  against  a  man,  all  per- 
sons who  derive  their  right  through  him  will  be  affected  with 
the  disabilities  which  affected  him.^  Nor  can  tlie  representar 
tives  of  a  man  be  in  a  better  position  than  the  man  himself.^ 
A  remainder-man  may,  during  the  life  of  the  tenant  for  life, 
file  a  bill  to  impeach  a  sale  under  a  decree,  but  he  is  not  bar- 
red by  laches,  if  he  wait  until  the  death  of  the  tenant  for  life.* 

PUKCHASE  FOPt  VALUE  WITHOUT  NOTICE. 
The  right  to  impeach  a  transaction  on  the  ground  of  fraud, 
has  no  place  as  against  third  parties,  who  have  paid  money  and 
acquired  a  legal  right  to  property,  without  notice  of  the  fraud. 
As  against  a  purchaser  for  valuable  consideration  without 
notice,  having  the  legal  title,  no  relief  can  be  had  in  equity. 
If  a  man  has  paid  his  money  in  ignorance  of  the  fact  that  an- 
other party  has  an  equitable  claim  to  the  property,  a  court  of 
equity  will  not  deprive  him  of  the  benefit  of  his  legal  title, 
even  although  his  equitable  claim  be  of  later  date  than  that  of 
the  other  party .^  *     The  rule  that  a  man  who  advances  money 

'  Clegg  V.  Edmondson,  8  D.  M.  &  G.  '  Lloyd  v.  Passingham,  Coop.  152  ; 

787;  Ernest  v.  Vivian,  33  L.  J.    Ch.  Att.-Gen.  v.  Flint,  4  Ha.  156;  Blackie 

513.'  V.   Clark,    15   Beav.    695;   Cobbett  v. 

"  Clanricarde  v.   Henning,  30  Beav.  Brock,     20     Beav.    528 ;    Dawson    v. 

175 ;   Ernest  v.  Vivian,  33  L.  J.  Ch.  Prince,  2  D.  <fe  J.  41 ;  Dodds  v.  Hills,  2 

513.     See  jNInrray  v.  Palmer,  2  Sch.  <fe  H.  <fe  M.  424;  Conip.  Vorley  v.  Cooke, 

Lef.  486;  Whalley  i/.  Whalley,  3Bligh,  1  Giff.   230;   Ogilvie   v.   Jeaffreson,   2 

1_  GifF.  379  ;  Cottam  v.  Eastern  Counties 

' '  Skottowe  V.  Williams,  3  D.  F.  <fe  J.  Eailway  Co.  1  J.  &  H.  243.     See  Pur- 

535.    See  Bellew  v.  Russell,   1  Ba.  &  cell  v.  Kelly,  Beat.  492 ;  Eyre  v.  Biir 

Be.  96.  mester,  10  H.  L.  90. 

*  Bo  wen  v.  Evans,  1  J.  &  L.  265. 


*  Hawley  v.  Cramer,  4  Cow.  717 ;  Green  v.  Tanner,  8  Met.  411 ;  Love  v. 
Braxton,  5  Call,  537;  Cressy  v.  Philips,  2  Root,  420;  Wamburzee  v.  Ken- 
nedy, 4  Dessau.  474  ;  Moore  v.  Clay,  7  Ala.  742 ;  Owin<?s  v.  Juit,  2  A.  K. 
Marsh.  380 ;  Lemmon  v.  Brown,  4  Bibb,  308 ;  Prevo  v.  Walters,  4  Scam. 
35. 

A  grantee  holding  property  under  a  fraudulent  deed,  may  convey  it  so 


ON  THE  GROimD  OF  FRAUD.  313 

lond  fide,  and  without  notice  of  the  infirmity  of  the  title  of 
the  seller,  will  be  protected  in  equity,  applies  equally  to  real 
estate,  chattels,  and  personal  estate.^  The  rule  is  subject  to  no 
exceptions  even  in  favor  of  charities.^ 

A  purchaser  for  valuable  consideration  without  notice  of 
any  defect  in  his  title,  or  of  the  existence  of  any  prior  equitable 
incumbrance  at  the  time  when  he  advanced  his  money,  may 
buy  in  or  obtain  any  outstanding  legal  estate,  not  held  upon 
express  trust  for  an  adverse  claimant,  or  a  judgment,  or  any 
other  legal  advantage,  the  possession  of  which  may  be  a  pro- 
tection to  himself  or  an  embarrassment  to  other  claimants.' 

*  Joyce  V.  De  Moleyns,  2  J.  <fe  L.  Z11 ;  458 ;  Maundrell  v.  Maundrell,  10  Ves. 

Dawson  v.  Prince,  2  D.  &  J.  49 ;  Dodda  246  ;  Hughes  v.  Garner,  2  T.  &  C.  328 ; 

V.  Hills,  2  H.  <fc  M.  424.     See  Thorn-  Carter  v.  Carter,  3  K.  &  J.  61Y  ;   Bates 

dike  V.  Hunt,  3  D.  &.  J.  563 ;   Case  v.  v.    Johnson,  Johns.    304 ;    Sharpies  v. 

James,  29  Beav.  512.  Adams,  32  Beav.  213;  Fagg  v.  James, 

"  Att.-Gen.  v.  Wilkins,  17  Beav.  293.  8  L.  T.  N.  S.  7.     See  Prosser  v.  Rice, 

'  Saunders  v.  Dehew,   2  Vern.  471  ;  28  Beav.  68 ;  Dodds  v.  Hills,  2  H.  <fe  M. 

Willoughby   v.    Willoughby,    1  T.   R.  424, 

763;  Jerrard  v.  Saunders,  2  Ves.  Jr. 


as  to  bind  the  creditors  of  the  grantor.  Roberts  v.  Anderson,  18  Johns. 
515;  s.  c.  3  Johns.  Ch.  371 ;  Neal  v.  Williams,  6  Shep.  391 ;  Green  r.  Tan- 
ner, 8  Met.  411 ;  Coleman  v.  Cocke,  6  Rand.  618 ;  Bean  v.  Smith,  2  Mason, 
253;  Dugan  ».  Vattier,  3  Blackf.  245;  Cummings  v.  McCullougb,  5  Ala. 
324 ;  Boyce  v.  Waller,  2  B.  Mon.  91 ;  Agricultural  Bank  v.  Dorsey,  1  Freem. 
Ch.  338;  cotitra,  Preston  v.  Crofut,  1  Day,  527  ;  Read  «.  Slater,  3  Hayw. 

159. 

A  person  who  is  by  construction  turned  into  a  trustee  without  any 
knowledge  on  his  part  that  he  is  trustee,  or  of  the  facts  that  make  him 
trustee,  may  be  a  bond  fide  purchaser  of  the  share  of  another  tenant  in 
common  of  the  same  property.     Giddings  v.  Eastman,  5  Paige,  561. 

The  true  question  is,  whether  the  purchaser  has  acted  in  good  faith  and 
purchased  under  circumstances  of  apparent  right  in  the  vendor  to  convey. 
A  purchase  by  way  of  a  mere  release  where,  by  reason  of  a  priority  of 
estate  between  the  parties,  it  operates  by  way  of  enlarging  the  estate  of 
the  releasee,  or  of  passing  the  estate  of  the  releasor,  may  make  a  lond 
fide  purchaser.    Flagg  v.  Mann,  2  Sumner,  486. 

The  rule  of  la^v',  which  secures  protection  to  a  bond  fide  purchaser  who 
has  dealt  in  good  faith  with  a  fraudulent  vendee  having  the  possession, 
applies  with  equal  force  to  a  case  where  the  original  sale  and  delivery  were 
subject  to  conditions  of  which  he  is  ignorant.  Hall  t.  Hinks,  21  Md.  406 ; 
contra.  Coggill  v.  Hartford  «&  New  Haven  R.  R.  Co.,  3  Gray,  545. 
21 


314  LOSS  OF  EIGHT  TO  IMPEACH 

The  authorities  establish  that  a  purchaser  from  a  person  in 
possession,  purchasing  without  notice  of  any  prior  charge  or 
trust,  and  obtaining  a  conveyance  of  the  legal  estate  from  a 
trustee  of  a  satisfied  term  or  mortgagee,  whose  mortgage  is 
satisfied,  will  be  protected  in  this  com't  against  a  prior  incum- 
brance or  cestui  que  trust,  provided  the  party  so  conveying 
the  legal  estate  has  no  notice  of  the  prior  trust  or  incambrance. 
But  it  has  never  been  decided  that  where  the  party  so  convey- 
ing has  notice  of  an  express  prior  trust  or  incumbrance,  the 
purchaser  can  protect  himself  therefrom  by  means  of  the  legal 
estate.^  Although  a  man  having  notice  of  an  intervening  in- 
cumbrance may  get  in  any  outstanding  legal  estate,  which  a 
person  without  notice  of  any  intervening  incumbrance  may 
hondfide  assign  to  him,  he  cannot  procure  a  conveyance  from 
a  person  who  himself  has  a  duty  to  perform,  and  who  by  such 
conveyance  would,  in  fact,  be  making  over  the  estate  to  protect 
the  former  against  the  very  interests  which  it  was  his  duty  to 
protect.*^  Some  of  the  earlier  cases  on  the  subject  of  purchase 
for  value  without  notice,  have,  it  may  be  observed,  gone  to 
fm-ther  length  than  would  be  supported  by  modern  decisions.' 

The  protection  from  getting  in  the  legal  estate  extends 
even  to  eases  where  the  apparent  or  asserted  equitable  title  is 
deduced  through  a  forged  instrument ;  ^  provided  the  asserted 
or  apparent  title  of  the  party  from  whom  it  was  derived  was 
clothed  with  possession.^  If  the  asserted  or  apparent  title  is 
deduced  through  a  forged  instrument,  or  through  an  instru- 
ment which  has  been  obtained  by  a  trick  or  a  cheat,  the  doc- 
trine of  purchase  for  value  without  notice  cannot  apply,  unless 
the  party  from  whom  the  title  is  deduced  had  taken  possession, 

'Carter  v.  Carter,  3  K   <fe  J.   617,       en  i>.  Evans,  1   J.   &  L.   264;  Lloyd  ii. 

640.  Attwood,  3  D.  ife  J.    655 ;  Comi).  Es- 

«  Jh.  642.  daile  v.  La  Nauze,  1  Y.  &  C.  400. 

"76.  636,  J9er  Wood,  L.  J.  ^  Jones  v.  Powles,  3  M.  &  K.  596; 

« Jones  ti.  Fowles,  3  M.   &  K.  581;       Ogilvie  ?;.  Jeaffreson,  2  Giff.  380.     See 

Dawson  v.  Prince,  2  D.  cfc  J.  41.  See       Cottam  v.   Eastern    Counties  Railway 

Lloyd  V.  Passiugham,  Coop.  152 ;  Bow-      Co.,  I  J.  <fe  H.  248. 


ON  THE  GROUND  OF  FRAUD.  315 

and  being  in  possession,  as  apparent  owner,  had  sold  and  con- 
veyed for  value.^  * 

To  raise  the  equity  of  purchase  for  value  without  notice,  it 
is  not  necessary  to  prove  possession.  It  is  enough  that  the 
purchase  be  from  an  apparent  owner  who  was  actually  in  pos- 
session.* If,  however,  an  instrument,  which  pui-ports  to  con- 
vey a  legal  estate  or  interest,  be  a  forged  instrument,  no  title 
can  be  acquired  under  it.  A  man  who  takes  under  such  an 
instrument  has  no  title  at  all,  and  cannot  claim  as  a  purchaser 
without  notice.^  If  the  indorsement  on  a  bill  of  exchange  be 
forged,  it  is  the  same  as  if  there  were  no  indorsement  at  all ; 
nor  will  a  i:eal  indorsement  by  the  payee  after  the  bill  has 
arrived  at  maturity,  give  the  holder  any  title,  if  the  original 
indorsement  was  a  forgery.* 

The  legal  estate  will  not  protect  a  purchaser  against  the 
claims  of  persons  whose  prior  right  to  its  protection  was  known 
to  him  before  completion  of  the  purchase,  even  although  the 
extent  of  such  claims  were  unknown ;  for  instance,  when  A, 
knowing  that  B  had  a  charge  on  the  property,  accepted  a  mort- 
gage of  the  estate,  relying  on  the  mortgagor's  covenant,  and 
then  got  in  an  old  outstanding  term  of  years,  it  was  held  that 
B,  having,  in  respect  of  A's  notice  of  the  first  incumbrance,  a 
preferable  right  to  require  an  assignment  of  the  term,  was  en- 
titled to  priority  not  only  in  respect  of  such  first  incumbrance, 
but  also  in  respect  of  a  subsequent  charge  of  which  A  had  no 
notice  at  the  date  of  his  advance.* 

'  Ogilvie  V.  Jeaffreson,  2  Giff.  380.  *  Esdaile  v.  La  Nauze,  1  Y.  <fe  C.  899. 

"  Wallwynn  v.  Lee,  9  Ves.  24:;  Ogil-  '  Willoughby  v.  Willougliby,  1  T.  R. 

vie  V.  Jeafi'i-eson,  2  GifF.  379.  763.     See  Sharpies  v.  Adams,  32  Beav 

^  Esdaile  v.  La  Nauze,  1  Y.  &  C.  399.  213. 
See  Cottam   v.  Eastern  Counties  Rail- 
way Co.,  IJ.  &  H,  248. 


*  Case  V.  JeDoings,  17  Tex.  661 ;  Brower  v.  Peabody,  3  Kcrnan,  121 
Caldwell  v.  Bartlett,  3  D.icr,  341  ;  Johnson  v.  Boyles,  26  Ala.  570  ;  Wooster 
V.  Sherwood,  35  N.  Y.  278. 


316  LOSS  OF  EIGHT  TO  IMPEACH 

The  doctrine  in  regard  to  the  effect  of  notice,  does  not 
affect  a  title  derived  from  another  person,  in  whose  hands  it 
stood  free  from  any  such  taint,  A  purchaser  "W  .11  not  be  affected 
by  notice  of  an  equitable  claim,  if  he  purchase  from  a  vendor 
who  himself  bought  hond  fide  without  notice.^  *  So,  also,  if  a 
person  who  has  notice  sells  to  another  who  has  no  notice,  and 
is,  also,  a  lond  fide  purchaser  for  valuable  consideration,  the 
latter  may  protect  his  title,  although  it  was  affected  with  the 
equity  arising  from  notice  in  the  hands  of  the  person  from 
whom  he  received  it.^  f  A  person  affected  by  notice  has  the 
benefit  of  want  of  notice  by  intermediate  purchasers/^  The 
lond  fide  purchase  of  an  estate  for  valuable  consideration, 
purges  away  the  equity  from  the  estate  in  the  hands  of  all  per- 
sons who  may  derive  title  under  it,  with  the  exception  of  the 
original  party,  whose  conscience  stands  bound  by  the  meditated 
fraud.  If  the  estate  becomes  revested  in  him,  the  original 
equity  will  attach  to  it  in  his  hands.*  X  ^  purchaser,  however, 
having  notice,  cannot  insist  on  holding  the  legal  estate  as 
against  those  parties  with  notice,  of  whose  right  that  estate 
was  talcen.'    A  man  who  has  notice  of  a  fact  which  ought  to 

>  Harrison  v.  Forth,  Prec.  Ch.  51 ;  1  2  Atk.  242  ;  Story's  Eq.  Jur.  409.    See 

Eq.  Ca.  Ab.  331.  pi.  6 ;  Lowther  v.  Carl-  Dodds  ;-.  Hills,  2  Ha.  <fc  M.  424. 

ton,   2  Atk.    242;  Brandlyn  v.  Ord,  1  ^  McQueen  v.  Farquliar,  11  Vcs.  467. 

Atk.  571 ;  Sweet  v.   Southeote,  2  Bro.  ■•  Kennedy  v.  Daly,  1  Sch.  ife  Lef.  379 ; 

C.  C.   66;  Andrew   v.   Wrigley,  4  ib.  Story's  Eq.  Jur.  410:  Couip.  Carter  «. 

125.  "  See  Dart.  V.  &  P.  585.  Carter,  3  K.  <fe  J.  617;  Bates  v.  John- 

"  Ferrars   v.   Cherry,    2  Vern.    384;  son,  John.  309. 

Mertins  v.  Jolliffe,  Arab.  313 ;  Lowther  *  Allen  v.  Knight,  5  Ha.  278. 
V.  Carlton,  Barnard,  Ch.  358;  For.  187; 


*  Lacy  V.  Wilson,  4  Munf.  313  ;  Fenno  v.  Sayre,  2  Ala.  458  ;  Holmes  n. 
Stout,  3  Green's  Ch.  492;  City  Coimcil  v.  Page,  Spear's  Ch.  159;  Lindsay 
V.  Rankin,  4  Bibb,  482 ;  Bumpass  v.  Platner,  1  Johns.  Ch.  213;  Myers  v. 
Peck,  2  Ala.  648. 

t  Varick  ?).  Briggs,  6  Paige,  223;  Tompkins  v.  Pencil,  6  Leigh,  576; 
Jtlallory  v.  Stodder,  6  Ala.  801 ;  Bracken  v.  Miller,  4  W.  &  S.  102  ;  Hill  v. 
Paul,  8  Miss.  479 ;  Pierce  v.  Faunce,  47  Me.  507. 

t  Filziramons  t.  Ogden,  7  Cranch,  218;  Alexander  v.  Pendleton,  8 
Cranch,  462;  Jackson  v.  Henry,  10  Johns.  185. 


ON  THE  GROUND  OF  FRAUD.  317 

have  put  liim  on  inquiry,  and  which  he  might  have  discovijred 
by  using  due  diligence,  cannot  claim  as  a  purchaser  without 
notice.^  If  a  purchaser  chooses  to  rest  satisfied  without  the 
knowledge  which  he  has  a  right  to  require,  he  cannot  claim  as 
a  purchaser  without  notice.^  Nor  can  a  man  who  has  by  his 
own  act  precluded  himself  from  the  means  of  knowledge,  or 
from  information,  set  up  as  against  persons  as  innocent  as  him- 
Belf,  the  want  of  information  which  he  has  precluded  himself 
from  obtaining.'  A  purchaser,  for  example,  who  buys  with 
notice  of  circumstances  sufficient  to  invalidate  the  sale,  is  not 
protected  by  a  proviso  that  the  purchaser  need  not  inquire/ 
So,  also,  a  man  who  takes  the  assignment  of  a  lease  under  a 
condition  not  to  inquire  into  the  lessor's  title,  must  have  im- 
puted to  him  the  knowledge  which,  on  prudent  inquiry,  he 
would  have  obtained.*  Nor  are  special  conditions  of  sale,  limit- 
ing the  extent  of  title,  an  excuse  for  a  purchaser  not  insisting 
on  the  production  of  a  deed  beyond  those  limits  of  which  he 
had  notice.'  Trustees  of  a  settlement  for  the  benefit  of  a  par- 
ticular person,  cannot  stand  any  higher  than  the  person  for 
whom  they  are  trustees  in  respect  of  notice.  If  he  is  affected 
by  notice,  they  cannot  claim  as  purchasers  for  value  without 
notice.'' 

Purchasers  under  a  decree  of  the  court  take  with  notice  of 
fraud  apparent  on  the  face  of  the  decree.^  A  decree  is  no  pro- 
tection against  persons  of  whom  the  purchaser  has  actual  notice 
that  they  ought  to  have  been,  but  are  not,  parties  to  the  suit.' 
But  a  purchaser  under  a  decree  will  not  be  afiected  by  fraud  in 

■  Jackson  v.  Rowe,  2  Sim.  &  St  475;  '  Robson  v.  Flight,  34  L,  J.  Ch.  226; 

Jones  V.  Powles,  3  M.  &  K.  596 ;  Ker  Clements  v.  Welles,  L.  R.  1  Eq.  200. 

V.  Lord  Dungauiion,  1  Dr.  &  War.  542;  "  Peto  v.  Hammond,  30  Beav.  495. 

Robinson  v.  Briggs,  1   Sm.   <fe  G.  188;  '  Spaight  v.  Cowiie,  I  U.  &  M.  359. 

Davies  v.  Thomas,  2  Y.  <fe  C.  234 ;  Jen-  *  Toulmin  v.  Steere,  3  Mer.  210;  Gort 

kins  V.  Jones,    2   Giff.  99;  Ogilvie   v.  v.  Stackpoole,  1  Dow.  30;  cit.  1  J.  <fc 

Jeaffreson,  ih.  378.  L.  257. 

^  Parker  v.  Whyte,  1  H.  &  M.  167.  »  Colclough  v.  Sterum,  3  Bligh.  181, 

'  Nicoll's  Case,  3  T>.  &  J.  387.  186;  Piers  v.  Piers,  1  Dr.  <fe  Wal.  265; 

♦  Jenkina  v.  Jones,  2  Giff,  99.  Rolleston  v.  Morton,  1  Dr.  &  War.  177. 


318  LOSS  OF  RIGHT  TO  IMPEACH 

the  proceedings  of  wliicli  he  himself  is  innocent,*  unless  it  be 
apparent  on  the  face  of  the  decree.'^  ISTor  is  a  sale  impeachable 
on  the  ground  of  its  having  been  the  object  for  which  the  suit, 
professedly  directed  to  other  purposes,  was  in  fact  instituted.^ 

To  entitle  a  man  to  the  character  of  a  hona  fide  purchaser 
without  notice,  he  must  have  acquired  the  legal  title,  and  have 
actually  paid  the  purchase  money,  or  parted  with  something 
of  value  by  way  of  payment  before  receiving  notice.**  A 
party  claiming  to  be  a  purchaser  for  value  without  notice 
under  a  marriage  contract,  entered  into  in  pursuance  of  arti- 
cles, must  show  that  he  had  no  notice  at  the  time  of  the  settle- 
ment ;  proof  that  he  had  no  notice  at  the  time  of  the  articles  is 
not  sufficient.^  t  The  protection  to  which  a  1)0110,  fide  pur- 
chaser without  notice  is  entitled,  extends  only  to  the  money 
which  has  been  actually  paid,  or  to  the  securities  which  have 
been  actually  aj)propriated  by  way  of  payment  before  notice.*  % 
Notice  before   actual   payment   of  all   the   purchase   money, 

'  Sug.    110;    Dart,    '7'74 ;    Bowen   v.  v.  Kernan,  2  Dr.  &  Wai\  31;  Borell  v. 

Evansfl  J.    &  L.  178;  2   H.  L.  257;  Dann,   2  Ha.  440;    Raj^ne  v.  Baker,  1 

Ede-eworlh  v.   EJgeworth,  12  Jr.  Eq.  Gifit.  245.     See  Wliitworth  v.  Gaugain, 

81.  Cr.  &  Fh.  325 ;  Att.-Gen.  v.  Flint,  4  Ha. 

»  Gore  V.  Stackpoole,  1  Dow.  30;  cit.  147,  156. 
1  J.  &  L.  257.  "  Davies  v.  Thomas,  2  T.  «fe  C.  234. 

=  Bowen  i;.  Evans,  1  J.  &  L.  178;  2  *  Story   v.    Windsor,    2    Atk.    630; 

H.  L.  257.  Hardingham  v.  Nicliolls,  3  Atk.  304; 

■*  How  V.  Weldon,  2  Ves.  516;  Story  Eayne  v.  Baker,  1  Giff.  245. 
V.  Lord  Windsor,  2  Atk.  630;  Molony 


*  Wormley  t.  "Wormley,  8  Wheat.  421;  Blight  v.  Banks,  6  Mon.  192; 
Jackson  r.  Summerville,  13  Penn.  359;  Keitcrease  v.  Levin,  36  Miss,  569  ; 
Du"-an  t'.  Vattier,  3  Blackf.  245  ;  Wood  t.  Mann,  1  Sumner,  500  ;  Boswell 
■p.  Buchanan,  3  Leigh,  365 :  Goust  v.  Martin,  3  S.  «&  R.  430. 

1  Flagg  V.  Mann,  2  Sumner,  484 ;  Duphey  v.  Frenage,  5  Stew.  «&  Port. 
215  •  Ingerson  t.  Starkweather,  AValk.  Ch.  346. 

J  Jewett  «.  Palmer,  7  Johns.  Ch,  65;  Williams  v.  Holloway,  1 
Strobh.  Eq.  103;  Blanchard  v.  Tyler,  12  Mich.  339;  Wells  t).  Morrow,  38 
Ala.  125;  Jones  v.  Read,  3  Dana,  540;  Pillow  v.  Shannon,  3  Yerg.  508; 
Curtis  i\  Hitchcock,  10  Paige,  399. 

Where  the  consideration  for  an  assignment  or  transfer  from  a  fraudu- 
lent vendee  is  such  that,  after  a  reclamation  and  recovery  by  the  vendor, 
the  assioTiee  or  transferee  would  remain  in  the  same  condition  as  before 


ON  THE  GROUIJTD  OF  FRAUD.  319 

althoue-h  it  be  secured/*  and  tlie  execution  of  the  convey- 
ance,2  is  binding  in  the  same  manner  as  notice  had  before  the 
contract.  Although,  however,  a  purchaser  after  conveyance 
executed  has  no  remedy  at  law  against  the  payment  of  money, 
for  which  he  has  given  security,  he  may  come  into  equity  to 
have  the  money  so  secured  employed  in  discharge  of  newly 
discovered  incumbrances,^ 

It  has  been  held  that  notice  to  a  purchaser  after  payment 
of  the  purchase  money,  but  before  execution  of  the  convey- 
ance, is  sufficient  to  deprive  him  of  the  benefit  of  the  legal 

"  Tourville  v  Naish,  3  P.  Wm.  307;  Comp.  Cregan  v.  Cullen,  16  Ir.  Ch.  339. 

Story  V.   Lord  Windsor,  2  Atk.  630;  "Jones  v.   Stanley,  2  Eq.    Ca.  Ab. 

Moore  v.  Mayhow,  1  Ch.  Ca.  34 :   Har-  685.     See  Allen  v.  Knight,  5  Ha.  27^ 

dingham  v.  Nicholls,  3  Alk.  304;   Til-  11  Jur.  527. 

desfey  v.   Lodge,   3   Sm.    &  G.  543  ;  '  Tourville  v.  Naish,  3  P.  Wm.  306. 


the  assignment  or  transfer,  it  is  not  sufficient  to  make  such  an  assignment 
or  transfer  valid  against  the  defrauded  vendor.  Something  of  value,  m  the 
way  of  property  or  money,  should  be  given  or  advanced ;  some  service 
rendered  or  liability  incurred,  on  tlie  foith  and  credit  of  the  transfer,  and 
as  a  present  reciprocal  consideration  therefor.  It  follows  that  a  transfer  of 
property  by  a  fraudulent  vendee  in  consideration  of  a  pre-existing  debt, 
confers  no  title  as  against  the  defrauded  vendor.  Ratcliffe  v.  Sangston,  18 
Md.  383;  Frew  v.  Daenman,  11  Ala.  880;  Ingram  v.  Morgan,  4  Humph. 
66 ;  Dickerson  v.  Tillinghast,  4  Paige,  215 ;  Coddington  «.  Bay,  20  Johns. 
637 ;  Powell  v.  JeflFeries,  4  Scam.  387. 

The  relinquishment  of  a  valid  security  for  a  prior  debt  is  a  sufficient 
consideration.     Padget  «.  Lawrence,  10  Paige,  170. 

Part  cash  and  part  past  indebtedness  is  good  pro  tanto.  Pickett  o. 
Barron,  29  Barb.  505. 

If  notice  is  only  after  a  payment  of  part  of  the  purchase  money,  the 
purchaser  is  entitled  to  reimbursement  as  a  condition  of  giving  way  to  the 
title  of  the  owner.     Lewis  v.  Beatty,  33  Miss.  52 ;   Goust  v.  Martin,  3 

S.  &  R.  428. 

The  payment  must  be  proved  by  some  other  evidence  than  the  mere 
receipt  in  the  deed.     Lloyd  v.  Lynch,  28  Penn.  419;  Mitchell  v.  Pickett 

23  Tex.  573. 

*  Notice  after  payment  and  execution,  but  before  i-ecording  is  not  suffi- 
cient.    Ely  V.  Scofield,  35  Barb.  330. 

A  purchaser  with  notice  of  a  prior  unrecorded  conveyance  may,  never- 
theless, hold  the  legal  estate  if  he  has  the  prior  equity.  Carr  v.  Ciillaghan, 
3  Litt.  305. 


320  LOSS  OF  EIGHT  TO  IMrEACH 

estate.^  *    The  point,  however,  is  one  which  will  require  much 
consideration  when  it  arises  again.^ 

"When  a  purchaser,  not  having  got  in  an  outstanding  legal 
estate,  has,  nevertheless,  from  having  a  better  equity  than  the 
other  claimants,  the  best  right  to  call  for  it,  he  will  in  equity 
be  entitled  to  its  protection.^  But  although  the  court  holds 
that  priority  will  give  equity,  yet  it  does  not  hold  that  it 
gives  so  superior  an  equity,  as  between  several  incumbrances 
and  purchasers,  as  to  enable  the  anterior  claimant  to  wrest 
the  legal  estate  from  the  person  who  has  obtained  it  without 
notice  of  the  anterior  claim.'* 

The  defence  of  a  purchase  for  value  without  notice,  is  a 
shield  as  well  against  a  legal  title  as  an  equitable  title.^  The 
principle,  in  other  words,  applies  as  well  when  the  right 
sought  to  be  enforced  is  a  legal  right  as  when  it  is  an  equita- 
ble one.®  The  court  holds  that  it  is  not  equitable  for  a  person 
who  has  bought  for  valuable  consideration  without  notice,  to 
be  deprived  of  that  for  which  he  has  paid  his  money,  and  will 
not  give  any  assistance  to  a  party  claiming  against  him,  or  do 
anything  to  prejudice  his  right,'^  but  will  leave  the  parties  to 
their  remedies  at  law.^  In  WiUiams  v.  Lainbe,^  however,  it 
was  held  by  Lord  Thurlow  that  the  defence  of  purchase  for 
value  without  notice  could  not  be  pleaded  in  bar  to  a  suit  for 
an  account  of  dower,  which  a  widow  having  a  legal  title 
sought  to  enforce ;  and  in  Collins  v.  Archer,^^  it  was  held  by 
Sir.  J.  Leach,  M.  E,.,  that  it  was  no  answer  to  a  bill  for  tithes. 

'  Wi<rg  V.  Wiffg,  1  Atk.  382.  ^  Joyce  v.  De  Moleyns,  2  J.  ife  L.  377 ; 

"  Dart,  V.  &  P.  540.  Atl.-Gen.  v.  Wilkins,'  17  .Beav.  293. 

=  Willougliby  V.  Willoughby,  1  T.  R.  "  76. 

76>> ;  Bowen  v.  Evaus,  1  J.  &  L.  265;  '  Walwvnn  v.  Lee,  9  Vcs.  24;  Joyce 

Parker  i;.  Carter,  4  Ila.  410;  Dart,  V.  «.  De  Moleyns,   2  J.  <fe  L.  374;  Att.. 

<fe  p.  641.  Gen.  p.  Wilkins,  17  Beav.  292. 

*  Rooper  v.  Harrison,  1  K.  &,  J.  108,  "  Att.-Gen.  v.  Wilkins.  17  Beav  292. 

^09  *  3  Bro.  C.  C.  264 

'»  1  R.  &  M.  284. 


Peabody  v.  Fenton,  3  Barb.  Ch.  451. 


ON  THE  GROUND  OF  FRAUD-  321 

The  doctrine  of  these  cases,  though  disapproved  of  and  op- 
posed to  many  recent  decisions/  has  been  approved  of  by 
Lord  Westbury,  in  Philipps  v.  Philvpps?  But  Lord  St. 
Leonards^  does  not  approve  of  the  reasoning  of  Lord  Westbury 
in  that  case,  and  is  of  opinion  that  those  cases  were  not  cor- 
rectly decided. 

The  defence  of  purchase  for  valuable  consideration  without 
notice,  will  not  prevent  the  court  from  protecting  property  by 
injunction,  pending  litigation.* 

Questions  relating  to  the  defence  of  purchase  for  valuable 
consideration  without  notice,  are  much  modified  by  the  opera- 
tion of  the  .act  for  rendering  unnecessary  the  assignment  of 
satisfied  terms.  If  the  term  is  gone,  it  will  not  stand  in  the 
way  of  the  petitioner  even  at  law.^ 

As  between  persons  claiming  merely  equitable  interests, 
the  defence  of  purchase  for  value  without  notice  has  no  place. 
A  party  who  purchases  an  equity  takes  it  subject  to  all  the 
equities  which  affect  it  in  the  hands  of  the  assignor.  The 
first  grantee  of  an  equity  has  the  right  to  be  paid  first,  and  it 
is  quite  immaterial  whether  the  subsequent  incumbrancers  had 
at  the  time  they  took  their  securities  and  paid  their  money, 
notice  of  a  prior  incumbrance.^  * 

'  See  Payne  v.  Compton,  2  Y.  <fe  C.  670;  Rooper  v.  Harrison,  2  K.  <fr  J.  108, 

461;  Bowen  v.  Evans,  1  J.  &  L.  178,  109;   Ford  v.   White,    16   Beav.   120; 

264 ;  Joyco  v.  De  Moleyns,  2  J.  <fe  L.  Stackhouse  v.  Countess  of  Jersey,  1  J. 

374;  Att.-Gen.  v.   Wilkins,    17   Beav.  &  H.  721;  Case  v.  James,  3  D.  F.  <fe  J, 

2S5;   Finch   v.    Shaw,    19   Beav.    509;  264;   Parker  v.   Clarke,  30   Beav.    54; 

Lane  'v.  Jackson,  20  Beav.  535.  Cory  v.  Eyre,  1  D.  J.  ife  S.  167  ;  Philipps 

"  31  L.  J.  Ch.  321,  326  v.  Pliilipps,  31  L.  J.  Ch.  321,  326.    See 

'  Sug.  V.  &  P.  790,  796.  Liebnian  v.  Harcourt,  2  Mer.  520  ;  Rice 

*  Greensiade  v.  Dare,  17  Beav.  502.  v.  Rice,  2  Drew.  73  ;   Eyre  v.  Bunues- 

»  Finch    V.    Finch,    19   Beav.    500;  ter,  10  H.  L.  90 ;  Dodds  w,  Hills,  2  H. 

Corry  v.  Cremorne,  12  Ir.  Ch.  136.  &  M.  424;  Comp.  Lane  v.  Jackson,  20 

°  Frazer  v.  Junes,  17  L.  J.  Ch.  353,  Beav.  539. 

356;  Manningford  v.  Toleman,  1  CoU. 


*  Poillon  ».  Martin,  1  Sanclf.  Ch.  569;  Crawford  v.  Beetliolf,  Saxton, 
458;  Jones  v.  Zollicoffer,  2  Taylor,  214;  Piuson  o.  Ivey,  1  Yorg.  29f»;  Du- 
pont  ».  Weilicrman,  10  Cal.  354. 


322  LOSS  OF  RIGHT  TO   IMPEACH 

"Where  a  party  lias  nothing  more  than  an  equitable  in- 
terest, another  party  who  has  a  prior  equitable  interest  will 
generally  be  preferred,  the  general  rule  being  that,  as  between 
equities,  he  who  is  prior  in  point  of  time  is  prior  in  point  of 
right.^  The  maxim,  qui  prior  est  tempore  potior  est  jure, 
always  applies  between  equities,  unless  there  be  something  to 
take  the  parties  out  of  the  general  rule.^  *  The  fact  that  the 
owner  of  the  equitable  interest  who  sets  up  the  defence  of 
purchase  without  notice,  may  be  in  possession,  and  has  a  right 
to  call  for  the  legal  estate,  does  not  vary  the  rule.^  The 
assignee  of  a  chose  in  action  not  assignable  at  law,  cannot  set 
up  the  defence  of  purchase  for  value  without  notice  as  against 
equities  which  attaclied  to  the  security  in  the  hands  of  the 
assignor.*  The  person  liable  to  the  demand  may  so  act  as 
to  create  against  himself  an  equity  preventing  the  applica- 
tion of  the  rule.  There  may  be  such  dealings  between  the 
assignee  and  the  party  liable  originally  as  to  preclude  him 
from  insisting  as  against  the  assignee  upon  rights  which  he 
might  have  claimed  as  against  the  assignor ;  but,  as  a  general 
rule,  a  person  who  buys  a  chose  in  action,  which  can  only  be 
put  in  suit  in  the  name  of  the  original  holder,  takes  subject  to 
the  equities  which  affect  the  assignor,  even  although  he  be  a 
land  fide  purchaser  without  notice.^  Where,  accordingly,  a 
man  bought  in  the  market,  in  the  ordinary  course  of  business, 
debentures  which  had  been  issued  in  fraud  of  a  company,  the 

>  Att.-Gen.  v.  Flint,  4  Ha.  156.  103 ;   Morris  v.  Li\ne,  1  Y.  &  0.  .C.  0. 

'  Frazer  v.  Jones,  17  L.  J.  Ch.  355;  380;  Smith  v.  Parkes,  16  Beav.   115; 

Bice  V.  Rice,  2  Drew.  78.  Clacli  v.  Holland,  19  Beav.  262  ;  Stack- 

*  Philipps  V.  Philipps,  31  L,  J.  Ch.  house  v.  Countess  of  Jerse}',  1  J.  cfe  H. 

321^  721 ;  Athenieum  Life  Assurance  Society 

"■•Coles  V.  Jones,  2  Vern.  692  ;  Turtoa  v.  I'ooley,  3  D.  <k  J.  294. 
V.  Benson,   1   P.  Wms.  496;   Cator  v.  ^  How  v.  Weldon,  2  Ves.  516;  Cock- 
Burke,  1   Bro.  C.  C.    434;    Priddy   v.  ell  v.  Taylor,  15  Beav.  103;  Athenseuin 
Rose,  3  Mer.  86 ;   Mangles  v.  Dixon,  3  Life  Assurance  Society  v,  Pooley,  3  D. 
H.  l!  702;  Cockell  v.  Taylor,  15  Beav.  &  J.  294. 


*  Halett  V.  Collins,  10  How.  174;  Boone  v.  Chiles,  10  Pet.  177;  Gallion, 
V.  McCaslin,  1  Blackf.  191 ;  Craig  v.  Leiper,  2  Yerg.  193;  Napier  v.  Elam, 
6  Yerg.  108. 


ON  THE   GROUND  OF  FRAUD. 


323 


fact  that  the  transfer  of  the  debentures  had  been  registered  ia 
the  books  of  the  company,  and  interest  had  been  paid  on 
them,  and  that  the  holder  was  a  hond  fide  purchaser  without 
notice,  was  held  not  to  aifect  the  application  of  the  rule,  and 
the  holder  of  them  was  restrained  from  suing  at  law  upon 
them.i  The  rule  that  a  man  who  purchases  a  chose  in  action 
takes  it  subject  to  the  equities,  which  attach  to  it  in  the  hands 
of  the  assignor,  applies  even  where  the  person  himself  who 
asserts  the  equity  has  created  the  interest  under  which  the 
assignee  claims  it.^  "Where,  accordingly,  A  mortgaged  a  fund 
in  court  to  B  ,  and  afterwards  joined  B  in  a  sub-mortgage  to 
C  ,  and  it  was  decided  that  the  mortgage  to  B  was  fraudulent 
and  void,  it  was  held  void  as  to  C  ,  and  that  neither  A 's  con- 
cm-rence  in  the  first  or  second  mortgage  prevented  him  from 
insisting  on  the  invalidity  of  the  transaction,  he  not  being 
aware  of  his  rights.^ 

The  rule  that  a  lond  fide  purchaser,  without  notice,  may 
buy  in,  or  obtain  for  his  protection  against  other  claimants,  an 
outstanding  legal  estate,  or  other  legal  advantage,  is  the 
foundation  of  the  equitable  doctrine  of  tacking,  as  it  is  tech- 
nically  called,  that  is,  uniting  securities  given  at  different 
times,  so  as  to  prevent  any  intermediate  purchaser  from  claim- 
ing a  title  to  redeem,  or  otherwise  to  discharge  one  lien  which 
is  prior  in  date,  without  redeeming  or  discharging  the  other 
liens  also  which  are  subsequent  to  his  own  title.^  *     Thus,  it  a 

'  Ih     Comp.  Thorndike  v.   Hunt.  3  ris  v.  Livie,  1  Y.  &  C.  C  C  380;   Bar- 

D   (fe  J   508;   Ashwin  ('.  Rurton.  9  Jur.  nett  v.  Sheffield,  1  D.  M.  &  (j.  371; 

K  S.  310;  'llulett's  Case,  2  J.  &  II.  Stackhouse  v.  Countess  of  Jersey,  1  J, 

306;    W^oo'lhams  w.    Anglo-Australian,  tfe  H.  721. 

<fec    Co  ,  3  Giff.  238,  2  D.  J.  &  S.  1(J8  ;  »  Cockell  v.  Taylor,  15  Beav.  119. 

Do'dds*''.  Hills,  2  H.AM.  424,  See  also  '76.103.                                     _, 

Pinkett )'.  Wrio-ht,  2  Ha.  137.  S  C.  onap-  *  Jeremy's  Eq.  Jur.  b.  1,   c.  u,  J;  1 '. 

peal ;  Murray  v.  Pinkett,  12  CI.  &  Fin.  Story's  Eq.  Jur.  412. 
TSw ,  iloore  v.  Jervis,  2  Coll.  60  ;  Mor- 

*  The  doctrine  of  tacking  is  never  allowed  against  incumbrances  which 
are  recorded.  Averill  r.  Guthrie,  s  Dana,  82 ;  Osborn  v.  Carr,  12  Ct.  196  ; 
St.  Andrew's  Church  v.  Tomkins,  7  Johus.  Ch.  14. 


324  EEMEDIES. 

tliird  mortgagee,  -without  notice  of.  a  second  mortgagee  at  tBe 
time  when  he  lent  his  money,  should  purchase  in  the  first 
mortgage,  by  which  he  would  acquire  the  legal  title,  the 
second  mortgagee  cannot  redeem  the  first  mortgage  without 
redeeming  the  third  mortgage  also.  It  is  immaterial  that  the 
third  mortgagee  may  have  had  notice  of  the  second  mortgage 
at  the  time  of  purchasing  in  the  first  mortgage,  provided  he 
had  no  such  notice  at  the  time  he  advanced  his  money .^  The 
absence  of  notice  at  the  time  of  the  advance  is  the  ground  of 
the  equity.^  The  legal  estate,  accordingly,  of  the  first  mort- 
gagee will  not  protect  subsequent  interests  purchased  with 
notice  of  mesne  incumbrances.  A  man  purchasing  an  equity 
of  redemption,  cannot  set  up  a  prior  mortgage  of  his  own,  or  a 
mortgage  which  he  has  got  in  against  subsequent  incumbrances 
of  which  he  had  notice.^ 


SECTION    VIL— REMEDIES. 

EE]yiEDIES  AT  LAW. 

An  action  on  the  case  for  damages  in  the  nature  of  a  writ 
of  deceit,  lies  at  law  against  a  man  for  making  a  false  and 
fraudulent  representation,  whereby  another  is  induced  to  enter 
into  a  transaction,  and  by  so  doing  sustains  damage.*  *  If  the 
representation  be  false,  it  is  immaterial  that  it  may  have  been 
made  without  any  fraudulent  inteiit,  or  that  the  party  who 

'  March  v.  Lee,  1  Ch.  Ca.  162 ;  Mor-  '  Brace  v.  Duchess  of  Marlborough,  2 

rett  V.   I'a^ko,  2  Atk.  52 ;  Wortley  v.  P.  Wins.  491 ;  Hopkinson  v.  Rolt,  9  H. 

Birkheail,  2  Ves.  571;  Lacey  v.  Ingle,  L.  514. 

2  Ph.  419  ;  Hooper  v.  Harrison,  2  K.  &  '  Toulmin  v.  Stcere,  3  Mer.  224. 

J.  86 ;  Bates  v.  Johnson,  John.  304.  See  *  Pasley  v.  Freeman,  3  T,  li.  62,  supra, 


Lloyd  V.  Attwood,  3  D.  <fe  J.  614.  p.  53. 


*  Toung  v.  Hall,  4  Geo.  95  ;  Irwin  v.  Sherrill,  1  Taylor,  1 ;  Patten  ■». 
Gurney,  13  Mass.  182;  Weatherforrl  ».  Fishback,  3  Scam.  170;  Fenimore 
V.  United  States,  3  Dallas,  357. 


REMEDIES. 


325 


made  it  may  have  derived  no  benefit  from  it.^  *  The  principle 
of  law  is,  that  fraud  accompanied  by  damage  is  in  all  cases  a 
good  cause  of  action.^  A  representation,  however,  honestly 
believed  to  be  true  by  the  party  making  it,  is  not,  indepen- 
dently of  a  duty  cast  on  him  to  know  the  truth,  a  good  cause 
of  action,  although  it  may  prove  to  be  untrue.^  f 

If   the   transaction    be  a  contract,  the  rule  of  law  with 

'  Polbill  V.  Walter,  3  B.  &  A.   114 ;       hiU  v.  Walter,  3  B.  &  A.  114 ;  Foster  i-. 
Foster  v.   Charles,  7  Biag,  100,  supra,       Charles,  7  Bing.  106. 
pp.  55,  56.  ^Haycraft   «.    Creasy,    2   East,    92; 

="  Paslcv  V.  Freeman,  3  T.  R.  52 ;  Pol-       Thorn  v.  Bigland,  8  Exch.  726 ;  Ormrod 

V.  Iluth,  14  M.  &  W.  651, 


*  SmitTi  V.  Mitchell,  6  Geo.  458  ;  Stiles  v.  White,  11  Met.  356;  Toung 
V.  Hall,  4  Geo.  95 ;  Hart  v.  Talmaclge,  2  Day,  381 ;  Clopton  v.  Cogart,  13 
Smed.  &  Mar.  363;  Collins  v.  Dcmiisou,  13  Met.  543;  West  v.  Emery, 
17  Vt.  583;  Boyd  v.  Brown,  6  Barr,  310;  Muuson  v.  Gairdner,  3  Brevard, 
31. 

t  Boyd  V.  Brown,  6  Barr,  316  ;  Weeks  v.  Burton,  7  Vt.  67  ;  Young  v. 
Covell,  8  Johns.  35;  Stone  v.  Denny,  4  Met.  151 ;  Tryon  v.  Whitmarsh,  1 
Met.  1  ;  Russell  v.  Clark,  7  Cranch,  63. 

Fraud  and  injury  must  concur  to  furnish  ground  for  judicial  action.  A 
mere  fraudulent  intent,  unaccompanied  by  any  injurious  act,  is  not  the 
subject  of  judicial  cognizance.  Clark  v.  White,  13  Pet.  178;  Garrow  v. 
Davis,  15  How.  373 ;  Morgan  v.  Bliss,  3  Mass.  Ill ;  Farrar  v.  Alston,  1 
Dev,  69. 

If  a  claim  is  made  for  fraud,  the  representations  must  not  only  be  false, 
but  false  to  the  knowledge  of  the  party  making  them.  Marshall  v.  Gray, 
57  Barb.  414;  Pettigrew  «.  Chellis,  41  K  H.  95 ;  Staines  v.  Shore,  16  Pcnn, 
200 ;  Bendurant  v.  Crawford,  33  Iowa,  40  ;  Morton  v.  Scull,  23  Ark.  289  ; 
King  V.  Eagle,  10  Allen,  548 ;  Taylor  v.  Frost,  39  Miss.  528  ;  Allen  v.  AVanu- 
mak°r,  2  Vroom,  370  ;  Bond  «.  Clark,  35  Vt.  577  ;  Zehner  v.  Kipler,  16  Ind. 
390  ;  Peers  v.  Davis,  39  Mo.  184  ;  Holmes  v.  Clark,  10  Iowa,  423. 

If  a  person,  with  intent  to  deceive  and  defraud,  asserts  a  fact  as  exist- 
ing of  his  own  knowledge,  when  he  has  no  knowledge  upon  the  subject, 
he  is  liable  to  the  party  injured  for  the  falsehood.  In  that  case,  there  is 
guilty  knowledge,  for  he  claims'  to  know,  and  asserts  what  he  does  not 
know.  Atwood  v.  Wright,  29  Ala.  346  ;  Bennett  v.  Judson,  21  N.  Y.  238; 
Craig  V.  Ward,  36  Barb.  377  ;  Sharp  v.  New  York,  40  Barb.  256. 

An  action  may  be  sustained  for  a  misrepresentation  by  which  a  creditor 
has  been  induced  to  allow  the  Statute  of  Limitations  to  bar  his  claim. 
Marshall  v.  Buchanan,  35  Cal.  264. 

In  cases  of  fraud,  it  is  immaterial  whether  any  or  what  covenants  are 


32G  REMEDIES. 

respect  to  false  and  fraudulent  representation  applies,  notwith- 
Btanding  the  contract  may  have  been  in  writing,  and  notwith- 
Btanding  the  representations,  may  be  no  part  of  the  terms  of 
the  written  contract.^ 

To  found  an  action  of  deceit,  the  fraud  must  be  a  personal  one 
on  the  part  of  the  person  making  the  representation,  or  some 
fraud  which  another  person  has  impliedly  authorized  him  to  be 
guilty  of.  An  action  of  deceit  cannot  be  brought  against  a 
principal  for  the  fraudulent  representations  of  his  agent,  unless 
he  has  impliedly  authorized  him  to  make  the  representations.^ 
An  incorporated  company  cannot,  therefore,  in  its  corporate 
capacity,  be  called  upon  to  answer  in  an  action  of  deceit  for 
false  representations  made  by  its  directors,  unless  they  have 
authorized  the  representations.  The  company  cannot  be  sued 
as  wrong-doers  by  imputing  to  them  the  misconduct  of  those 
whom  they  have  employed.  An  action  of  deceit  may  be 
maintained  against  the  directors  personally ;  but  not  against 
the  company.' 

A  purchaser  may,  after  conveyance,  bring  an  action  in  the 
case  for  a  fraudulent  misrepresentation  of  the  property,*  *  or 

'  Attwood  V.   Small,   You.  40*7,  per  L.  R.  1,  Sc.  App.  Ca.  162;  Henderson 

Lord  Lyndluirst.  v.  Lacon,  L.  R.  5,  Eq.  262. 

*  New   Brunswick    <fec.    Railway    v.  "  Dobell  v.   Stevens,   3  B.  <fe  C.  623  ; 

Conybeare,  9  H.  L.  711  ;  Henderson  v.  Mummery  v.  Paul,  1  C.  B.  316  ,  Fuller 

Lacon,  L.  R.  5,  Eq.  262.  v.  Wilson,  3  Q.  B.  58,  68;  Gerhard  v. 

'  Western  Bank  of  Scotland  v.  Addie,  Bates,  2  E.  <fe  B.  476. 


contained  in  the  deed.  Wardell  v.  Fosdick,  13  Johns.  325;  Shacldcford  p. 
Handy,  1  A.  K.  Marsh.  495  ;  Bostwick  v.  Lewis,  1  Day,  250 ;  Cravens  «. 
Grant,  2  Mon.  117  :  s.  c.  4  Mon.  126. 

The  simple  fact  of  making  representations  in  regard  to  the  credit  of 
another,  which  turn  out  to  be  untrue,  unconnected  with  a  fraudulent  design, 
is  not  sufficient  to  support  an  action.  Lord  v.  Goddard,  13  How.  198  ; 
Lord  V.  Colley,  6  K  H.  99 ;  Young  v.  Covell,  8  Johns.  25 ;  Williams  v. 
Wood,  14  Johns.  12G  ;  Fooks  i:  Waples,  1  Earring.  131 ;  IIoppc"-  u  Lisk, 
1  Smith,  102 ;  Upton  v.  Vail,  6  Johns.  181 ;  Allen  v.  Addington,  7 
Wend.  1. 

*  Mallory  v.  Leach,  35  Yt.  15G  ;  Kelly  v.  Pember,  35  Vt.  183  ;  Giffordf. 
Carvill,  29  Cal.  583 ;  Love  v.  Oldham,  22  Ind.  51. 


EEMEDIES.  327 

the  title;*  or  may  recover  the  purchase-money,  if  the  circum- 
stances of  the  case  entitle  him  to  rescind  the  contract.^  * 

-  Fillmore  v.  Hood,  5  Bing.  N.  C.  97.  '  Early  v.  Garrett,  4  M.  &  R.  687.  See 

Dart,  V.  &  P.  612-614. 


*  Pearsoll  v.  Cliapin,  44  Penn.  9  ;  Shackleford  v.  Handy,  1  A.  K.  Marsh. 
495. 

Fraud  in  a  contract  is  no  bar  to  an  action  upon  a  contract,  unless  there 
is  a  rescission  or  offer  to  rescind  the  contract  within  a  reasonable  tune  after 
the  discovery  of  the  fraud.  Benton  v.  Stewart,  3  Wend.  23G  ;  Bain  v. 
Wilson,  1  J.  J.  Marsh.  202. 

The  defendant  in  case  of  fraud  is  entitled  to  a  deduction  of  an  amount 
equal  to  the  difference  between  the  value  of  the  property,  on  the  supposi- 
tion of  its  corresponding  with  the  representations  and  its  real  value. 
Ward  V.  Reynolds,  32  Ala.  384;  Hinckley  v.  Hendrickson,  5  McLean,  170; 
Bischof  ?).  Lucas,  6  Ind.  26  ;  Smith  v.  Smith,  30  Vt.  139 ;  Weinier  v.  Clem- 
ent, 37  Penn.  147  ;  Cecil  v.  Spurger,  32  Mo.  462 ;  Huckabee  v.  Hutter,  10 
Ala.  657;  GrofT  «.  Hansel,  33  Md.  161;  Withers  v.  Greene,  9  How.  230; 
Berker  ».  Vrooman,  13  Johns.  302 ;  Spalding  v.  Vandercook,  2  Wend.  432. 

In  an  action  of  ejectment,  replevin,  trover,  assumpsit,  or  other  forms 
of  action,  for  the  purpose  of  recovering  back  anything,  as  on  the  rescission 
of  a  contract,  the  very  first  thing  to  be  done,  after  showing  that  the  plaintiff 
parted  with  the  thing  in  pursuance  of  the  contract  alleged,  is  to  show  that 
the  plaintiff  has  rescinded  the  contract  by  doing,  or  offering  to  do,  all  that 
is  necessary  and  reasonably  possible  to  restore  the  parties  to  the  condition 
in  which  they  were  before  the  contract,  and  thus  to  show  that  he  had  good 
ground  to  rescind  it.  Pearsoll  v.  Chapin,  44  Penn.  9 ;  Putter  r.  Blake,  2 
H.  &  J.  353  ;  Norton  v.  Young,  3  Greenl.  30 ;  Sanborn  v.  Osgood,  16  N.H. 
112;  Weeks  v.  Rohie,  42  K  H.  316  ;  Gulth  v.  White,  35  Barb.  76;  Wasson 
T.  Bovet,  1  Denio,  69  ;  Thayer  r.  Turner,  8  Met.  552 ;  Ball  v.  Livelj',  4  Dana, 
371 ;  Kinney  v.  Kierman,  2  Lans.  46. 

If  the  thing  the  consideration  of  which  is  sought  to  be  recovered  is 
entirely  worthless,  there  need  be  no  tender  of  a  return.  Whenever  the 
question  of  restoration  arises,  it  is  an  equitable  question,  and  is  to  be  dealt 
with  on  equitable  principles.  Babcock  r.  Case,  61  Penn.  427 ;  Mahoiie  v. 
Reeves,  11  Ala.  345  ;  Smith  v.  Smith,  30  Vt.  139  ;  Phelan  v.  Cj-osby,  2  Giil. 
■402. 

A  party  can  not  excuse  an  omission  to  return  the  note  of  a  third  person 
by  offering  to  prove  that  the  maker  is  insolvent,  and  the  note  on  that 
accoinit  worthless.  Cook  v.  Gilman,  34  N.  H.  556  ;  Gushing  «.  Wyman,  38 
Me.  589 ;  Baker  i\  Pvobbins,  2  Denio,  136. 

Leaving  a  deed  of  reconveyance  with  the  clerk  of  the  court  in  which  an 
action  is  pending,  upon  the  note  given  as  the  consideration  for  the 
property,  is  a  sufficient  restoration.  Concord  Bank  v.  Grc"-<r.  14  N.  11. 
331. 


328  REMEDIES. 

If  a  contract  for  the  sale  or  pnreliase  of  goods  or  chattels  be 
induced  by  false  and  fraudulent  representations  on  the  part  of 
the  other  party  to  the  contract,  the  party  defrauded  may 
rescind  or  avoid  the  contract,  and  recover  back  what  he  has 
paid  or  sold,^  unless  he  has,  after  discovery  of  the  fraud,  acted 
upon  and  treated  the  contract  as  binding.^  The  right  to 
rescind  is  not  afterwards  revived  by  the  discovery  of  another 
incident  in  the  same  fraud.^  Nor  can  a  contract  be  rescinded 
if  the  circumstances  have  in  the  meantime  so  far  changed  that 
the  parties  cannot  be  restored  to  the  position  in  which  they 

'  Gompertz  v.  Denton,  1  Cr.  &  M.  207;  "  Campbell  v.  Fleming,  1  A.  &  E.  40; 

Load  V.  Green,  15  M.  &  W.  220.  Selway  v.  Fogg,  5  M.  &  W.  86. 

»/6. 


Kthe  vendor  has  taken  the  vendee's  own  notes,  an  offer  to  return  them 
at  the  trial  is  sufficient.  They  need  not  be  surrendered  before  bringing 
suit.  Thurston  v.  Blanchard,  22  Pick.  18;  Coghill  v.  Boring,  15  Cal.  213 ; 
Duval  V.  Mowry,  6  R.  I.  479  ;  Nichols  v.  Michaels,  23  N.  Y.  264  ;  Armstrong 
V.  Tufts,  6  Barb.  432  ;  Keutgen  v.  Parks,  2  Sandf.  60 ;  Hathorn  v.  Hodges, 
28  N.  Y.  486 ;  Armstrong  v.  Gushing,  43  Barb.  350 ;  White  v.  Dodds,  18 
Abb.  250 ;  Stevens  v.  Hyde,  32  Barb.  171 ;  Pequeno  v.  Taylor,  38  Barb- 
375. 

In  case  of  a  sale  on  credit,  if  there  is  any  fraud  on  the  part  of  the 
purchaser,  which  avoids  the  special  contract,  the  vendor  may  disregard 
the  terms  of  credit,  and  bring  an  action  immediately  for  the  goods.  Bank 
V.  Gore,  15  Mass.  79;  Wilson  j-.  Fovet,  6  Johns.  110;  Roth  v.  Palmer,  27 
Barb.  652  ;  Kayser  v.  Sichel,  34  Barb.  84  ;  French  v.  White,  5  Duer,  256  ; 
Bliss  V.  Cottle,  32  Barb.  322  ;  Wigand  ®  Sichel,  3  Keyes,  120. 

A  fraudulent  representation  of  the  quality  and  value  of  the  thing  sold 
fonns  no  defense  in  a  suit  on  a  specialty.  The  traud  that  may  be  given 
in  evidence,  under  the  plea  of  7ion  est  factum^  must  be  confined  to  fi-aud 
that  relates  to  the  execution  of  the  instrument ;  as,  if  a  deed  be  fraud- 
ulently misread,  and  is  executed  under  that  imposition,  or  where  there  ia 
a  fraudulent  substitution  of  one  deed  for  another,  and  the  party's  signa- 
ture is  obtained  to  a  deed  which  he  did  not  intend  to  execute.  Dorr  v. 
Munsell,  13  Johns.  430;  Franchot  v.  Leach,  5  Cow.  506;  Champion  w. 
White,  5  Cow.  509  ;  Burrows  v.  Alter,  7  Mo.  424  ;  IMordecai  r.  Tankersley, 
1  Ala.  100  ;  Anderson  v.  Johnson,  3  Sandf.  1 ;  McKnight  v.  Kellett,  9  Geo. 
532  ;  Holly  ».  Young,  27  Ala.  203.  Contra,  Hazard  v.  Irwin,  18  Pick.  95; 
Hoitt  V.  Holcomb,  23  N.  H.  535 ;  Herrin  ».  Libbey,  36  Me.  350. 

Where  the  defense  set  up  is  fraud  in  the  contract  of  sale,  apart  from 
any  defect  of  title,  and  independent  of  it.  the  defense  may  be  made  to  an 


REMEDIES.  329 

stood  before  or  at  the  time  of  the  cob  tract.'  *  The  effect  of 
the  av^oidance  of  an  agreement  on  the  ground  of  fraud,  is  to 
place  the  parties  in  the  same  position  as  if  it  liad  never  been 
made ;  and  all  rights  which  are  transferred  or  created  bj  the 
agreement,  are  revested  or  discharged  by  the  avoidance.  If, 
when  it  is  avoided,  nothing  has  occurred  to  alter  the  position 
of  affairs,  the  rights  and  remedies  of  the  parties  are  the  same, 
as  if  it  had  been  void  from  the  beginning ;  but  if  any  altera- 
tion has  taken  place,  their  rights  and  remedies  are  subject  to 
the  effect  of  that  alteration.^  A  contract,  though  induced  by 
fraud,  cannot  be  avoided,  if  the  rights  of  an  innocent  vendee 
have  in  the  meantime  intervened.^  If  before  disaffirmance, 
the  goods  or  chattels  have  been  resold  or  transferred,  either  in 
whole  or  in  part,  to  an  innocent  vendee,  the  title  of  such 
vendee  is  good  against  the  original  vendor.*  So,  also,  where 
a  negotiable  instrument  is  obtained  by  fraud,  the  negotiation 
of  the  instrument  gives  a  valid  title  to  a  transferee,  who  takes 


'Clarke  v.  Dickson,   El.  Bl.  &  El.  ^  Supra, -pp.  49,  512. 

148.  MVhite   v.    Garden,    10  C.  B.    919; 

*  Queen  v.  Saddlers'  Co.,  10  H.  L.  420,  Kingsford  v.  Merry,  1 1  Excb.  579, 1 H. 

per  Blackburn,  J.     See  Feret  v.  Hill,  15  &  N.  503. 
C.  B.  207. 


action  for  the  price  of  the  land,  although  the  defendant  retains  possession. 
Anderson  v.  Hill,  13  Smed.  &  Mar.  079  ;  Concord  Bank  r.  Gregg,  14ISr.  H. 
331 ;  Forster  v.  Gillam,  13  Ponn.  340  ;  Gordon  v.  Parmelee,  2  Allen,  212  ; 
Whittier  v.  Vose,  4  Shep.  403  ;  Whitney  v.  Allaire,  4  Denio,  554.  Contra, 
CulLira  V.  Branch  Bank,  4  Ala.  21 ;  Christian  v.  Scott,  1  Stew.  490 ;  Stone 
e.  Gover,  1  Ala.  287. 

An  action  for  deceit  will  lie  for  false  representations  made  upon  the 
sale  of  land,  and  the  fact  that  the  deed  does  not  contain  a  warranty  cover- 
ing the  ground  of  the  representation  is  immaterial.  Coon  «.  Atwell,  46  N. 
H.  510;  Whitney  v.  Allaire,  1  Comst.  305;  Culver  v.  Avery,  7  Wend.  380; 
Wade  V.  Sherman,  3  Bibb,  583. 

*  Denner  ®.  Smith,  82  Vt.  1  ;  Poor  v.  Woodburn,  25  Vt.  334 ;  Buchanan 
V.  Horney,  12  111,  336;  Shaw  v.  Bamhart,  17  Ind.  183  ;  Blen  v.  Bear  River 
&c.  Co.,  20  Cal.  603;  Jemison  v.  Woodruff,  34  Ala.  143;  Kinney  v.  Kier- 
man,  2  Lans.  492  ;  Pierce  v.  Wilson,  34  Ala.  596. 

22 


330  REMEDIES. 

it  without  notice  of  the  frand.^  Upon  the  same  principle, 
where  a  man  has  been  induced  to  become  a  shareholder  of  a 
company,  through  the  fraud  of  the  company,  he  cannot  by 
avoiding  his  contract  with  the  company,  and  repudiating  his 
shares,  evade  his  liability  to  creditors  of  the  company,  who 
dealt  with  the  company  whilst  he  remained  a  shareholder,  and 
who  were  not  parties  to  the  fraud.^  But,  although  it  may  no 
longer  be  open  to  the  party  defrauded,  from  the  change  of  cir- 
cumstances which  have  taken  place  in  the  meantime,  to  avoid 
the  contract  upon  the  discovery  of  the  fraud,  he  has  a  remedy 
by'  action  of  deceit  for  damages  against  the  party  by  whose 
misrepresentations  he  has  been  misled  to  his  injury.' 

The  party  defrauded  may,  instead  of  rescinding  the  con- 
tract, stand  to  the  bargain,  even  after  he  has  discovered  the 
fr^ud,  and  recover  damages  for  the  fraud,  or  he  may  recoup  in . 
damages  if  sued  by  the  vendor  for  the  price.  The  affirmance 
of  a  contract  by  the  vendee  after  discovery  of  the  fraud,  merely 
extinguishes  his  right  to  rescind.  His  other  remedies  remain 
unimpaired.*  * 

If  a  vendee  discover  that  he  is  insolvent,  and  that  it  is  not 
in  his  power  to  pay  for  the  goods,  the  courts  have  allowed  him 
to  rescind  the  contract,  and  return  the  goods  to  the  seller,  with 
his  assent,  provided  he  did  so  before  the  contract  was  consum- 
mated by  an  absolute  delivery,  and  acceptance,  and  provided 
it  was  done  in  good  faith,  and  not  with  the  colorable  design  of 
favoring  a  particular  creditor.     He  cannot  rescind  the  contract 

'  Barber  v.  Richards,  6   Exch.   63 ;  Western  Bank  of  Scotland  v.  Addie,  L. 

May  V.  Chapman,  16  M.  &  W.  355.  R.  1,  So.  App.  Ca.  167. 

*  Henderson  v.  Royal  British  Bank,  1  *  Whitney?;.  Allaire, 4 Denio(Araer.), 

E.  &  B.  356  ;  Powis  v.  Harding,  1  C.  B.  551.     See  Van  Epps  v.  Harrison,  5  Hill 

N.  S.  533  ;  Oakes  v.  Turquand,  L.  R.  2,  (Amer.),  68 ;  2  Kent's  Comni.  480;  B6- 

App.  Ca.  325.  darride  sur  Dol.,  vol.  I,  p.  248. 

■'  Clarke  «.  Dickson,  El.  Bl.  &  El.  149; 


*  Peck  V.  Brewer,  48  111.  55  ;  Horem  v.  Libbey,  36  Me.  350  ;  Whitney 
-».  Allaire,  1  Comst.  305;  Weiiner  «.  Clement,  37  Penn.  147;  Herrin  », 
Libbey,  36  Me.  350. 


REMEDIES.  331 

after  the  transit  has  ceased,  and  the  goods  have  been  actually 
received  in  his  possession,  and  the  rights  of  creditors  have 
attached.^ 

If  goods  are  obtained  from  the  vendor  by  means  of  a  fraud- 
ulent misrepresentation  of  the  vendee  as  to  his  situation  and 
circumstances,  the  vendor  may  elect  to  affirm  the  sale,  and  sue 
for  the  price,  or  to  avoid  the  sale  and  follow  the  gdods,  or  the 
proceeds  thereof,  into  the  hands  of  a  third  person  who  has  re- 
ceived them,  without  paying  any  new  consideration.*  But  if  he 
proceeds  to  judgment  against  the  vendee  after  he  is  apprised 
of  the  fraud,  his  election  is  determined,  and  he  cannot  after- 
ward follow  the  goods  into  the  hands  of  a  third  person  on  the 
ground  of  fraud.^ 

If  the  party  by  whose  misrepresentation  a  transaction  has 
been  induced  is  not  a  party  to  the  transaction,  the  transaction 
stands  good,  and  cannot  be  avoided  unless  one  of  the  parties  to 
the  transaction  was  implicated  in  the  fraud.^  The  party  de- 
frauded has  his  remedy  by  action  of  deceit  for  damages  against 
the  party  who  made  the  misrepresentations. 

If  a  specific  chattel  be  sold  under  a  warranty,  and  the  prop- 
erty has  passed  to  the  purchaser,  he  cannot  return  the  chattel 
and  claim  back  what  he  has  paid,  or  resist  an  action  for  the 
price,  on  the  ground  of  breach  of  warranty,  unless  there  was  a 
condition  to  that  effect  in  the  contract ;  but  must  have  recourse 
to  an  action  for  damages  in  respect  of  the  breach  of  warranty.'* 
The  case,  however,  is  different  if  fraud  can  be  shown.     If  a 

'Barnes  v.  Freeland,   6   T.  R.  80;  637;  Bank  of  Beloit  v.  Beale,  V  Tiff. 

Richardson  v.   Goss,   3   B.  &  P.    119;  (Amer  )  475. 

Neate  v.  Ball,  2  East,   117:  Dixon  v.  '  Masters  t-  Ibberson   8  C.  B    100 

Baldwin,  5  ib.  175  ;  Saltc  v.  Field.  5  T.  *  Street  v.  B  ay    2   B.    &   Ad.  4o2 ; 

■^  211  Dawson  v.  (  oUis,  10  C.  B.  o23 :  Belin 

'"  Lloyd  V.  Brewster,  4  Paige  (Amer.),  v.  Buruess,  3  B.  &  S.  755. 


*  Powell  V.  Bradley,  9  G.  &  J.  220;   Heushaw  v.  Bryant,  4  Scam.  97; 
Bradberry  «.  Keas,  5  J.  J.  Marsh.  44G. 


332  REMEDIES. 

representation  be  made  fraudulently,  for  tlie  purpose  of  induc- 
ing a  party  to  enter  into  a  contract,  the  party  defrauded  is  en- 
titled to  avoid  the  contract  on  the  ground  of  fraud,  and  may 
recover  back  the  price,  notwithstanding  the  warranty  of  the 
same  matter.* 

RESIEDIES  IN  EQUITY. 

The  common  law,  however,  has  not  provided  the  courts  of 
ordinary  jurisdiction  with  the  means  of  enforcing  the  specific 
restitution  or  recovery  of  property  in  the  ample  manner  that 
was  afforded  by  the  Roman  law.  If  the  execution  of  a  deed 
or  other  instrument  had  been  obtained  by  fraud,  or  under  such 
circumstances  as  to  require  that  it  should  be  cancelled  and 
delivered  up,  the  courts  of  common  law  were  incompetent  to 
afford  such  a  remedy,  so  that,  at  law,  the  party  defrauded 
might  be  left  for  an  indefinite  length  of  time  liable  to  have  the 
instrument  set  up  against  him,  when  possibly  the  evidence  of 
the  fraud  might  have  become  unattainable.  The  necessity, 
therefore,  for  the  extraordinary  interference  of  the  Court  of 
Chancery,  to  afford  an  adequate  remedy,  became  manifest  at  a 
very  early  date.* 

The  jurisdiction  of  the  Court  of  Chancery,  by  way  of  re- 
scinding transactions  on  the  ground  of  fraud,  is  exercised  either 
for  the  purpose  of  cancelling  executory  agreements  or  of  setting 
aside  executed  agreements,  deeds,   or  conveyances.      In  the 

'  Street  v.  Blay,  2  B.  &  Ad.  462;       Murray  v.  Mann,  2  Exch.  538. 


*  The  fraud,  which  is  the  ground  for  relief  against  a  contract,  is  fraud 
at  the  time  of  the  execution  of  the  instrument.  Chesterman  v.  Gardner,  5 
Johns.  Ch.  29. 

When  a  suit  has  been  instituted  both  at  law  and  in  equity,  the  com- 
plainant can  not  be  required  to  elect  between  the  two  actions  before  the 
filing  of  the  answer.  Abel  v.  Cave,  3  B.  Mon.  159;  Freeman  v.  Staats,  4 
Halst.  Ch  814. 


REMEDIES.  333 

case  of  executory  agreements,  tlie  equity  of  rescission  is  founded 
on  the  injustice  of  leaving  a  man  exposed,  it  may  be  for  an  in- 
definite time,  to  have  a  fraudulent  instrument  set  up  against 
him.  It  is  not  enough  that  he  should  be  able  to  plead  fraud 
in  bar  t'o  an  action,  whenever  an  action  is  brought.  Complete 
justice,  as  understood  by  courts  of  equity,  requires  that  the 
instrument  should  be  delivered  up  and  cancelled.  In  the  case 
of  executed  agreements,  deeds,  or  conveyances,  the  equity  of 
rescission  is  founded  on  the  injustice  of  permitting  a  man  who 
has  fraudulently  appropriated  the  property  of  others  to  benefit 
by  the  fruits  of  his  iniquity.  Though  pecuniary  damages  to 
be  obtained  at  law  might  be,  in  some  sense,  a  remedy,  com- 
plete justice,  as  understood  by  courts  of  equity,  requires  that 
the  transaction  should  be  set  aside  and  avoided.^ 

If  a  contract  has  been  induced  by  false  representations,  or 
a  transaction  is  in  any  way  tainted  by  fraud,  and  the  defraud- 
ing party  is  a  party  to  the  transaction,  the  transaction  will, 
even  after  conveyance  and  payment  of  the  purchase-moneys,  be 
set  aside,  if  the  nature  of  the  case  and  the  condition  of  the 
parties  will  admit  of  it ;  ^  or  the  defrauding  party  will  be  com- 
pelled to  make  his  representation  good.^'^     A  man  whose  in- 

'  Evans  v.    Bicknell,    6    Ves.    182;  Case,  25Beav.  515  ;  Slim  v.  Croucher,  1 

Blair  V.  Bromley,  2  Ph.  3G0.  D.  F.  <fe  J.  518. 

"^  Edwards   v.   M'Cleay,    Coop.    308,  '  Burrowes   v.   Lock,  10   Ves.    475 ; 

312,  2  yw.  287;   Berry  v.  Armitstead,  Pulsfdrd  v.  Richards,  17Beav.  87,  96; 

2  Keen,  221  ;  Lovell  v.  Hicks,  2  Y.  &  Att.-Gen.  v.  Cox,  3  H.  L.  240.  See  Ellis 

C.  46;  Pulsford  v.  Richards,  17  Bear.  v.  Colman,  25  Beav.  673. 
87,  96 ;  Bell's  Case,  22  Beav.  35  ;  Ayre's 


*  Bacon  v.  Bronson,  7  Johns,  Ch.  194;  Bean  v.  Herrick,  12  Me.  263; 
Pollard  V.  Rogers,  4  Call,  239 ;  Campl)eU  v.  Whittingbam,  5  J.  J.  Marsh. 
96. 

Contracts  in  regard  to  personal,  as  Avell  as  real  property,  may  be  re- 
scinded. Bradberry  v.  Keas,  5  J.  J.  Marsh.  446  ;  Rumph  v.  Abercrombie, 
12  Ala.  64  ;  Taymon  v.  Mitchell,  1  Md.  Ch.  496. 

A  purchaser  in  the  undisturbed  possession  of  land  will  not  be  relieved 
against  the  payment  of  the  purchase  money  cm  the  mere  ground  of  defect 
of  title,  there  being  no  fraud  or  misrepresentation.     In  such  case  he  must 


334  KEMEDTES. 

terest  Las  been  affected  by  misrepresentation,  has  au  eqnity  to 
be  placed  in  the  same  situation  as  if  the  fact  represented  were 
true.^  If  there  is  nothing  in  the  nature  of  the  case  or  the  con- 
dition of  the  parties  to  prevent  the  court  from  getting  the 
transaction  set  aside,  the  party  defrauded  is  entitled  to  have  it 
set  aside,  and  not  merely  to  have  the  representation  made 
good,^  It  is  enough,  in  order  to  entitle  him  to  have  a  trans- 
action set  aside,  to  show  a  fraudulent  representation  as  to  any 
]")art  of  that  which  induced  him  to  enter  into  the  contract 
■N^'hich  he  seeks  to  rescind,^ 

The  rule  being  that  he  who  seeks  equity  must  do  equity  in 
matters  arising  out  of  the  transaction  in  respect  of  which  he 

'  Blair  v.  Broml-y,  2  Ph.  360.  '  Kennedy  v.  Panama,  &c.  Co.  L.  R. 

"  Rawlins   v.    Wickham,    3  D.  <fe  J.       2,  Q.  B.  587. 
322. 


seek  hii?  remedy  at  law  upon  the  covenants.  If  there  is  no  fraud  and  no 
covenants  to  secure  title,  he  is  without  remedy ;  as  the  vendor  selling  in 
good  faith  is  not  responsible  for  the  goodness  of  his  title  beyond  the  ex- 
tent of  his  covenants  in  the  deed.  Patton  ».  Taylor,  7  How.  133  ;  Abbott 
V.  Allen.  3  Johns.  Ch.  522  ;  Davis  v.  Bowland,  2  J.  J.  Marsh.  37 ;  Noonan  v. 
Lee,  2  Blackf.  499. 

The  question  presented  by  an  application  for  a  rescission  is  different 
from  that  presented  in  an  application  for  specific  performance.  Applica- 
tions to  rescind  must  abide  the  result  one  way  or  the  other  of  the  stem 
proof  of  fraud.  In  the  absence  of  all  proof  of  snggcstio  falsi  or  suppressio 
veri,  parties  must  abide  by  their  contracts.  Maney  v.  Eater,  3  Humph. 
347. 

If  the  fraud  relates  to  the  title  to  property,  it  may  be  removed  by  a  ten- 
der of  a  good  and  valid  deed  at  any  time  before  decree  in  the  absence  of 
proof  of  special  damage  Boyce  ».  Grundy,  3  Pet.  210 ;  Davidson  v.  Moss, 
5  How.  (Miss.)  G73 ;  Hunt  v.  McConnell,  1  Mon.  222  ;  Wickliflfe  v.  Lee,  6 
B.  Mon.  5i3  ;  Evans  v.  Boiling,  5  Ala.  550;  Ayres  v.  Mitchell,  3  Smed.  & 
Mar.  683. 

If  the  fraud  relates  to  the  quantity  of  land,  the  purchaser  may  be  re- 
lieved from  paying  for  the  deficiency.  M'Coun  v.  Delaney,  3  Bibb,  46 ; 
Jopping  V.  Dorlcy,  1  Yerg.  289. 

If  the  fraud  consists  in  puffing  at  an  auction  sale,  the  excess  may  be 
decreed  to  be  refunded.     Veazie  v.  Williams,  8  How.  134. 

If  the  defect  of  title    relates  only  to  a  small  portion  of  the  property 


REMEDIES.  335 

seeks  relief,*  tlie  court  will  not  rescind  a  transaction  unless  the 
party  against  whom  relief  is  sought  can  be  remitted  to  the 
position  in  whicli  he  stood  antecedently  to  or  at  the  time  of 
the  transaction.^*  On  setting  aside  a  transaction,  the  court 
proceeds  on  the  ground  that,  as  the  transaction  never  ought  to 

'  Hanson  v.  Keating,  4  Ha.  1 ;  Nee-  '  Hanson     v.     Keatina:,    4    Ha.    1 ; 

som   V.    Clarkson,  ib.    101 ;    Sober   v.  Beaden  v.  King,  9  Ha.  532 ;   Savery  v. 

Kemp,  6  Ha.  160;  Wilkinson  v.Fowkes,  King,  5  H.   L.  627;  Western  Bank  of 

9  Ha.  593  ;  Gibson   v.  Goldsmid,  5  D.  Scotland  v.   Addie,  L.  R.  1,  Sc.  App. 

M.  &  G.  757.  Ca.  162. 


wbich  did  not  constitute  an  inducement  to  the  purchaser,  it  is  more  equit- 
able to  decree  compensation  than  to  rescind  the  contract.  Buck  v.  Mc- 
Caughtry,'5  Mon  216;  Tomlinson  v.  Savage,  6  Ired.  Eq.  430. 

Equity  will  not  decree  compensation  for  fraud  in  a  sale  when  the- 
vendee  retains  the  property.  The  remedy  is  at  law.  Stone  v.  Ramsay,  4 
Mon.  236  ;  Cocke  v.  Hardin,  6  Litt.  374. 

The  contract  may  be  rescinded  for  fraud  in  relation  to  the  title,  al- 
though there  is  a  covenant  of  warranty.  Woods  v.  North,  6  Humph.  309  ; 
English  V.  Benwoo.l,  25  Miss.  167  ;  Prout  v.  Roberts,  32  Ala.  427 ;  More- 
land  V.  Atchinson,  19  Tex.  303. 

It  is  not  necessary  that  there  should  be  an  eviction  under  an  outstand- 
ing title.  Parkham  v.  Randolph,  4  How.  (Miss.)  435  ;  Napier  v.  Elam,  6 
Yerg.  108. 

A  vendee  can  not  buy  in  an  outstanding  title,  and  assert  it  against  the 
vendor.  All  he  is  entitled  to  is  a  repayment  of  the  money  paid  out. 
Hardeman  v.  Conan,  10  Smed.  &  Mar.  486 ;  Westall  v.  Austin,  5  Ired, 
Eq.  1. 

Abandonment  of  possession  is  not  a  necessary  prerequisite  to  entitle 
the  party  to  recover.  Young  v.  Harris,  2  Ala.  108 ;  Coffee  v.  Newsom,  3 
Kelly,  442 ;  Foster  v.  Gersett,  29  Ala.  393 ;  Garner  v.  Leorett,  32  Ala.  410. 

The  vendee,  upon  rescission,  must  offer  to  return  the  property.  More 
V.  Smedl)urgh,  8  Paige,  600 ;  Duncan  v  Jeter,  5  Ala.  604 ;  Abel  v.  Cave,  9 
B.  Mou.  159 ;  Bruen  v.  Hone,  2  Barb.  586 ;  Matta  v.  Henderson,  14  La.  An. 
473. 

*  Garland  v.  Bowling,  1  Hemp.  710;  Johnson  v.  Jones,  13  Smed.  & 
Mar.  580 ;  Pintard  v.  Martin,  1  Smed.  &  Mar.  Ch.  126 ;  Cunningham  v. 
Fithian,  2  Gilman,  650 ;  Carroll  v.  Rice,  1  Walk.  Ch.  373. 

The  fact  lliat  the  parties  cannot  be  put  precisely  in  statu  quo  as  to  the 
subject-matter  of  the  contract  will  not  preclude  a  decree  for  the  rescission 
of  the  contract.  If  it  would,  an  executed  contract  never  could  be  rescinded 
by  a  decree  of  a  court,  for  the  parties  never  could  be  thus  placed.  Gatling 
V.  Newell,  9  Ind.  572. 


336  REMEDIES. 

have  taken  place,  the  rights  of  the  parties  are,  as  far  as  possihle, 
to  be  placed  in  the  same  situation  in  which  they  would  have 
stood  if  there  had  never  been  any  such  transaction.^  If  the 
party  defrauded  has,  by  his  own  act,  put  it  out  of  his  power  to 
replace  the  party  against  whom  relief  is  sought  in  the  position 
in  which  he  stood  at  the  time  of  the  transaction,^  or  if  third 
parties,  without  notice  of  the  fraud,  have  in  the  meantime  ac- 
quired rights  and  interests  in  the  matter,^  there  can  be  no  re- 
scission ;  aud  nothing  remains  to  the  party  defrauded  but  a 
reparation  in  damages.*  Rescission  of  a  transaction  or  contract 
cannot  in  general  be  had,  unless  the  party  seeking  it  is  able 
himself  to  rescind  it  in  toto?  *  Under  special  circumstances,  a 
transaction  may  be  partially  rescinded;  but  the  court  will 
never  adopt  such  a  course  unless  it  can  see  clearly  that  no  in- 
justice will  be  done.^  If  the  transaction  is  severable,  inability 
to  rescind  it  as  to  part  is  not  fatal  to  the  right  to  rescind  it  as 
to  another  part.'    The  fact,  for  instance,  that  a  man  who  has 


*  Bellamy  v.  Sabine,  2  Ph.  425.  v.  Dickson,  El.  Bl.  <fe  El.  148 ;  Maturia 
''Nicoli's    Casd,    3    D.    &    J.   387;  «;.  Tredeuiiick,  12  W.  R.  740;  Western 

Mixer's  Case,  4  D.  &  J.  586.  Bank  of  Scotland  v.  Addie,  L.  E..  1,  So. 

^  SchoUield  v.  Templer,  4  D.   <fe  J.  App.  Ca.  162,  s«/jm. 

429  ;  Oakes  v.  Turquand,  L.  R.  2,  App.  "  Bradley  v.  Bosley,  1  Barb.  (Amer.), 

Ca.  375.  125. 

<  Mixer's  Case,  4  D.  <fe  J.  586.  '  Matui-in  v.   Tredeunick,   12   W.  R 

*  Hanson  v.  Keating,  4  Ha.  1 ;  Clarke  740. 


*  Golden  v.  Maupin,  2  J.  J.  Marsh.  236 ;  Clay  «.  Turner,  3  Bibb,  52. 

The  general  rule  is,  that  where  the  whole  contract  is  contamiuated  with 
fraud,  aud  Ihe  parties  can  be  placed  in  i<tnt'i  quo^  the  contract  may  be 
rescinded.  Where  that  can  not  be  done,  or  where  the  injured  party  is  un- 
willing to  have  it  done,  then  the  party  ag^-rieved  must  seek  his  redress 
exclusively  at  law.  Caldwell  ®.  Caldwell,  1  J.  J.  Marsh.  53;  Pintard  v. 
Martin,  1  Smed.  &  Mar.  Ch.  136. 

A  vendee  may  have  the  contract  set  aside,  or  compensation  for  a  defect 
fraudulently  concealed  from  him.  The  courts  will  not  rescind  a  part  only 
of  an  entire  contract.  Joplin  v.  Dooley,  1  Yerg.  289;  Glasiicll  r.  Thomas, 
3  Leigh,  113  ;  Hope  v.  Evans,  1  Smed.  &  Mar.  Ch.  193  ;  Step  v.  Alkire,  2 
A.  K.  Marsh.  257 ;  Prewitt  v.  Graves,  5  J.  J.  i\Iarsh.  114. 


REMEDIES.  337 

been  induced  by  fraud  to  purcliase  shares  in  a  particular  com- 
pany, may  have  sold  some  of  the  shares  before  discovering  the 
fraud,  will  not  deprive  him  of  the  right  to  have  the  transaction 
as  to  the  remaining  shares  rescinded^*  Nor  is  the  inability  of 
a  man  to  rescind  a  transaction  as  a  whole  fatal  to  his  right  of 
rescission,  if  his  inability  to  do  so  is  attributable  to  the  party 
ajrainst  whom  he  seeks  relief.  If  the  latter  has  entangled  and 
complicated  the  subject  of  the  transaction  in  such  a  manner  as 
to  render  it  impossible  that  he  should  be  restored,  the  party 
defrauded  may,  on  doing  whatever  it  is  in  his  power  to  do, 
have  the  transaction  rescinded.^  So  also,  it  is  no  objection  to 
the  rescission  of  a  transaction  for  the  purchase  of  shares  ob- 
tained by  fraud  that  the  shares  have  fallen  in  value  since  the 
date  of  the  transaction.^f  Kor  is  a  man,  if  the  property  is  of  a 
perishable  nature,  bound  to  keep  it  in  a  state  of  preservation 
until  bill  filed.*:}:  His  only  duty  is  to  do  nothing  with  the 
property  after  the  bill  filed;  and  in  cases  where  damage  is 
likely  to  occur,  and  might  be  prevented,  he  ought,  perhaps,  to 
give  intimation  to  the  defendant,  leaving  him  to  do  what  he 
pleased."  A  party  seeking  to  set  aside  a  sale  of  shares,  is  not 
bound  to  pay  calls  on  them  to  prevent  forfeiture  after  filing 
liis  bill.*'  It  is  not  fatal  to  his  right  of  rescission  that  some  of 
the  shares  may  have  been  forfeited  for  non-payment  of  calls 
since  bill  filed.'' 

A  sale,  however,  of  several  kinds  of  shares  m  one  transac- 
tion cannot  be  set  aside  for  misrepresentation,  if  the  person 
seeking  relief  is  unable  to  restore  all  the  shares  he  has  taken.^ 

'  Maturin  v.  Tredeunick,   12  W.  R.  *  Maturia  v.   Tredenaick,    2   X.    R. 

740.  514  ;  4  N.  R.  16  ;  12  W.  R.  740. 

■•'  Masson  v.  Bo  vet,  1  Denio  (Amer.),  ^  lb. 

69.  '  Jf>- 

'  Blake  v.  Mowatt,  21  Beav.  613.  ''lb.  *  7&. 


♦  Sliackleford  v  Handy,  1  A.  K.  Marsh.  495. 
t  Veazie  v-  Williams,  8  How.  134. 
J  Scott  V.  Perrin,  4  Bibb,  360. 


338  REMEDIES. 

Wlietlier  tlie  change  of  a  company  from  an  incorporated 
into  a  corporate  one,  for  tlie  mere  purpose  of  more  conveniently 
winding  np  its  affairs,  renders  restitution  impracticable,  is  a 
difficult  question.  In  Clarke  v.  Dickson,^  a  mining  company 
was,  with  the  plaintiff's  consent,  registered  as  a  company  "with 
limited  liability,  and  was  wound  up  under  the  Winding-up  Act. 
In  an  action  for  money  had  and  received,  to  recover  back  the 
amount  paid  for  the  purchase  of  the  shares,  the  court  held  the 
action  not  maintainable.  Erie,  C.  J.,  said  :  "  He  has  changed 
the  nature  of  the  article ;  the  shares  he  received  were  shares  in 
a  company,  on  the  cost-book  principle ;  the  plaintiff  offers  to 
restore  them  after  he  has  converted  them  into  shares  in  a  joint- 
stock  company."  The  cases  show  that  there  is  no  distinction 
between  cases  where  the  question  arises  between  an  alleged 
shareholder  and  the  creditors  of  a  company,  and  when  it  arises 
between  a  company  and  a  person  who  has  fraudulently  been 
induced  to  become  a  shareholder.^  In  Henderson  v.  Lacon,^ 
however,  "Wood,  L.  J.,  held  that  a  man  who  had  been  induced 
by  the  false  representations  of  the  directors  of  a  corajDany  to 
take  shares  in  the  company,  might,  if  his  bill  was  filed  before 
an  order  for  winding  up  was  made,  sustain  a  suit  for  the  recov- 
ery of  his  moneys,  notwithstanding  the  company  was  being 
wound  up.  So  also,  it  was  held  by  the  Lords  Justices  in 
Smith's  Case,  lie  Reese  River  Co.,*  that  if  a  bill  be  filed  to  set 
aside  a  transaction  on  the  ground  of  false  representation,  before 
a  winding-up  order  has  been  made,  a  man  is  entitled  to  relief, 
notwithstanding  a  subsequent  winding-up  order.  The  applica- 
tion in  this  case  was  made  under  the  winding  up.  In  the 
former  case,  judgment  was  given  on  the  bill. 

If  the  parties  to  the  transaction  cannot  be  restored  to  their 


•  El.  Bl.  A  El.  149.  '  L.  R.  5 ;  Eq.  262. 

*  Western  Bank  of  Scotland  y,  Addie,  *  L.  K.  2 ;  Cb.  App.  604. 
L.  P    1,  Sc.  App.  Ca.  107. 


REMEDIES.  339 

original  condition,  the  transaction  stands  good,  and  cannot  be 
rescinded.  The  party  defrauded  must  seek  redress  in  an  action 
on  the  case  at  law  for  the  fraud,  or,  if  he  is  sued  on  the  con- 
tract, he  may  recoup  in  damages.* 

If  the  false  representation  by  which  a  contract  has  been 
induced  was  not  made  fraudulently,  but  was  made  through 
mistake  or  misapprehension,  and  the  subject-matter  of  the  con- 
tract, though  different  in  some  respects  and  in  certain  incidents 
from  what  it  was  represented  to  be,  is  not  so  different  in  sub- 
stance from  what  it  was  represented  to  be  as  to  amount  to  a 
failure  of  consideration,  the  transaction  will  not  be  set  aside,  if 
the  party  who  made  the  representation  is  willing  to  give  com- 
pensation for  the  variance,^  and  the  variance  is  such  as  to  admit 
of  compensation  by  a  pecuniary  equivalent.^  If,  however,  the 
misdescription  of  the  property  is  such  that  it  cannot  be  estimated 
by  a  pecuniary  equivalent,  there  is  no  case  for  compensation, 
and  the  transaction  will  be  set  aside.* 

If  the  person  by  whose  fraudulent  misrepresentation  a 
transaction  has  been  induced,  is  not  himself  a  party  to  the 
transaction,  the  transaction  stands  good  and  cannot  be  repudi- 
ated, if  the  other  party  to  the  transaction  has  not  been  party 
or  privy  to  the  fraud.^^"  The  party  defrauded  must  seek  re- 
dress in  an  action  in  the  case  at  law,  for  damages  against  the 
party  of  whose  fraud  he  complains.^     If,  for  instance,  a  man 


»Kingv.  Hamlet,   2  M.   &  K.  456;  Beav.  612,     See  Howland  v.  Norris,  1 

Great  Luxemburg  Railway  Co.  v.  Mag-  Cox,  61. 

nay,  25  Beav.  587.  ^  PuLsford  v.  Richards,  IT  Beav.  95 ; 

»  See  Dyer  v.  llargrave,  10  Vea.  507;  Duranty's  Case,  26  Beav.  270;  Worth's 

Hill  t'.  Buckley,   17"Ve9.   395;  Martin  Case,  4  Drew.    529;  A'e  Felgute's  Case, 

r  Cotter,  3  J.   &  L.  496  ;   Shackleton  v.  2  D.  J.  &  S.  456. 

8utcliffc,  1  Deg.  &  S.  620;  I'ulsford  v.  "  Whitmore   v.   Mackeson,  16  Beav. 

Richards,  17  Beav.  96.  128  ;  Pulsfordi'.  Richards,  17  P>eav.  95  ; 

» Infra,  pp.  362-366.  Ellis  v.    Colman,    25  Eeav.   673.     See 

♦  Leyland  v.  lllingworth,  2  D.  F.  &.  J  Pasley  v.  Freeman,  3  T.  R.  52. 
2,48;  Earl   of  Durham  v.   Legard,   34 


•*  Appleton  V.  Horton,  25  Me.  23 ;  Lee  v.  Vauglian,  1  Bibb,  235. 


340  REMEDIES. 

has  been  induced  by  the  false  representations  of  a  third  party 
to  deal  with  another,  he  cannot  have  the  transaction  rescinded, 
if  the  other  party  to  the  transaction  has  not  been  party  or  privy 
to  the  false  representation.^  He  must  seek  redress  in  an  action 
on  the  case  at  law,  against  the  party  by  whose  false  representa- 
tions he  has  been  induced  to  deal.^  *  So,  also,  if  a  man  has 
been  induced  to  take  shares  from  a  company  by  fraudulent  mis- 
representations made  by  some  person,  not  by  an  agent  of  the 
company,  authorized  to  make  any  representations  or  authorized 
to  deal  on  behalf  of  the  company,  he  is  bound  by  his  contract 
with  the  company,  and  cannot  have  it  rescinded.  He  must 
seek  redress  in  an  action  on  the  case  at  law  against  the  person 
who  made  the  representation.^  So,  also,  if  a  man  has  been 
induced  to  buy  shares  in  a  company  from  a  shareholder,  on 
false  and  fraudulent  representations  made  to  him  by  the  seller, 
the  company  not  being  a  jjarty  or  privy  to  the  fraud,  he  is  not 
entitled  to  have  the  transfer  set  aside  as  between  himself  and 
the  company,  or  to  restrain  the  company  from  making  calls  on 
him,  w^hilst  he  is  a  shareholder.  His  remedy  is  against  his 
vendor,  to  compel  him  to  accept  a  re-transfer  of  the  shares,  and 
fur  an  indemnity  for  the  losses  he  has  sustained  in  consequence 
of  having  taken  the  shares.^ 

Cases  in  which  a  man  has  been  induced  by  false  representa- 
tions to  purchase  shares  directly  from  a  company,  must  be  dis- 
tinguished from  cases  in  which  the  transaction  is  not  with  the 
company,  but  is  between  two  individuals,  meeting  in  the  mar- 
ket and  dealing  for  their  private  interests,  like  the  seller  and 

'Pulsford  V.  Richards,  17  Beav,  95;  *  See  Stainbank  v.  Fernley,  9  Sim. 

Duranty's  Case,  26  Beav.  271.  556  ;  Selden  v.  Connell,  10  Sim.  58, 79  ; 

9  7o.  Matiirin  v.  Tredennick,  2  N.  K.  514;  4 

'  Brockwell's  Case,  4  Drew.  205 ;  Ni-  N.  R.  1 5  ;  Duranty's  Case,  26  Beav.  271, 

coil's  Case,  3  D.  <fe  J.  427.  273 ;  Worth's  Case,  4  Drew.  529. 


*  Woodman  v.  Freeman,  25  Me.  531. 


REMEDIES.  341 

purchaser  of  transferable  shares.  If  a  man  "be  induced  by 
false  representations  on  the  part  of  the  directors  of  a  company, 
to  purchase  shares  in  the  company  from  an  actual  shareholder, 
who  has  not  been  himself  a  party  or  privy  to  the  false  repre- 
sentations, the  shares  cannot  be  forced  back  on  the  vendor,  be- 
cause on  his  part  the  transaction  has  been  lonci  fide^  nor  can 
the  transaction  be  set  aside  as  between  the  purchaser  of  the 
shares  and  the  company  ;  for  the  contract  has  been  between  in- 
dividuals, and  the  company  stands  in  point  of  law  in  the  rela- 
tion of  a  third  party.  The  purchaser  of  the  shares  must  seek 
his  remedy  at  law  against  the  parties  by  whose  false  representa- 
tions he  has  been  misled.^ 

All  that  equity  can  do  where  a  man  has  been  induced  to 
enter  into  a  transaction  by  the  false  and  fraudulent  representa- 
tions of  a  person  who  is  not  a  party  to  the  transaction,  is  to 
make  him  make  good  his  assertion  as  far  as  is  possible.^  And 
the  court  can  do  this  in  many  cases.  Where,  accordingly,  upon 
a  treaty  for  marriage,  a  person,  to  whom  the  intended  husband 
was  indebted,  was  asked  by  the  father  of  the  lady  to  make  out 
a  list  of  the  debts  of  the  intended  husband,  and,  in  doing  so, 
omitted  the  debt  which  was  due  to  himself,  on  the  representa- 
tion made  to  him  by  the  intended  husband,  that,  if  the  debt 
were  disclosed,  the  marriage  would  be  prevented  taking  place, 
he  was,  after  the  marriage,  restrained  by  perpetual  injunction 
from  enforcing  the  debt  against  the  husband.^  So,  also,  where 
upon  a  treaty  of  marriage,  a  brother,  in  order  to  make  it  ap- 
pear that  his  sister  had  a  fortune  of  £500,  whereas  she  had  only 
£350,  gave  her  a  sum  of  £150,  so  as  to  make  up  £500,  and  she 

'  Dnranty's  Case,  26  Bear.  273,  274 ;  17  Beav.  229  ;  Stephens  v.  Venables,  31 

Tnglis  V.  Lumsden,   21   Dee.  of  Ct.  of  Beav.  127;  Yeomans  v.  Williams,  L.  R. 

Session,  2d  series,  200.     See  Worth's  1  Eq.  185;  Comp.  Ellis  v.   Colraan,  25 

Case,  4  Drew.  529.  Beav.  673. 

*  PuMord  w.  Richards,  17  Beav.  87,  '  Neville  v.  Wilkinson,   1   Bro.  C.  C. 

95.    See  Ilobbs  I).  Norton,  1  Vern.  135  ;  543.     See  Dalbiac  ?».  Dalbiac,  16  Ves. 

Arnot  w.  Biseoe,  1  Ves.  95 ;  Burrowes  124;    Vauxhall    Bridge    Co.   v.    Lord 

«.  Lock,  10  Ves.  470 ;  Busbby  v.  Ellis ;  Spencer,  Jac.  67. 


342  REMEDIES. 

gave  liim  a  bond  for  the  amount,  and  the  marriage  took  place 
upon  the  faith  of  the  representation,  it  was  held  that  the  bond 
could  not  be  enforced,  and  it  was  ordered  to  be  delivered  up  to 
be  cancelled.^  So,  also,  where  a  man  had  made  a  false  repre- 
sentation as  to  the  value  of  property,  which  he  had  agreed  to 
charge  as  security  for  another  person,  his  representatives  were 
held  bound  to  make  it  good.^  So,  also,  where  a  marriage  was 
contracted,  and  a  settlement  made  on  the  faith  of  representa- 
tions by  the  executor  of  a  will,  under  which  a  certain  sum  of 
money  was  left  to  the  intended  husband,  that  the  legacy  was 
substantial  and  safe  and  would  be  paid  at  a  future  time,  the 
estate  of  the  executor  was  held  to  have  thereby  become  in- 
debted for  the  whole  amount.^  So,  also,  where  a  father  pre- 
viously to  the  marriage  of  his  daughter,  promises  to  the  in- 
tended husband  to  leave  her  a  sum  of  money,  and  the  promise 
amounts  to  a  distinct  engagement  or  undertaking,  and  the  mar- 
riage takes  place  on  the  faith  of  such  representation,  the  court 
will  give  effect  to  it  against  the  estate  of  the  father.^  So,  also, 
the  trustee  of  a  fund,  who,  having  received  notice  of  an  in- 
cumbrance on  the  fund,  had  represented  to  a  creditor  of  the 
beneficiary  that  the  fund  was  unincumbered,  and  that  the  ben- 
eficiary had  a  right  to  make  an  assignment,  was  held  bound  to 
make  up  the  deficiency.'^  So,  also,  a  solicitor  who  has  made  to 
his  client  untrue  representations  respecting  a  property  on  which 
his  client  is  about  to  advance  money,  may  be  compelled  to 
make  good  his  representations.^  * 

'  Gale  V.   Lindo,  1  Yern.  475.     See  Alt,  4  GifF.  84.     See  Jameson  v.  Stein, 

MonU'fiori  v.  Montefiori,  1  W.  Bl.  363.  21  Beav.  5 ;  Kay  v.  Crook,  3  Sm.  &  G. 

Ingram  v.  Thorpe,  7  Ila.  67.  407  ;  Trole  v.  Soady,  2  Giff.  1 ;  Stephens 

'  Hutton  V.  Rossiter,  7  D.  M.  &  G.  9.  v.  Venabk-s,  31  Beav.  128. 

^  ILimmcrsley  v.  De  Bid,  12  CI.  &  'Burrowes  v.   Lock,    10    Ves.    470" 

Fin.  45 ;  Barkworth  v.  Young,  4  Drew.  Slim  v.  Croucher,  1  L).  F.  &  J.  518. 

1  ;  ]Maunsell  v.  Hedges,  4  II.  L.  1039;  "  Cleland  i;.  Leech,  5  Ir.  Ch.  478. 
Layer   v.  Fielder,  32  Beav.  1 ;  Alt  v. 


*  Bacon  v.  Johnson,  7  Johns.  Ch.  194. 


REMEDIES.  34t5 

Though,  where  one  person  states  a  fact  to  be  true,  on  the 
faith  of  which  another  acts,  a  court  of  equity  will  often  com- 
pel him  to  make  his  assertion  good,  it  does  not  follow  that 
where  a  man  has  given  a  general  character  respecting  another, 
the  person  to  whom  the  representation  was  made  can  come 
into  equity  to  compel  him  to  make  good  his  representation. 
Though  a  person  who  misrepresents  the  character  or  the  credit 
of  another,  is  liable  for  the  damage  occasioned  by  such  repre- 
sentation, the  amount  can  only  be  determined  in  a  com't  of 
law  by  an  action  for  damages.-^ 

The  rules  with  respect  to  sales  by  the  court  are  not  less 
stringent  than  in  ordinary  cases.^  If  a  sale  has  taken  place 
under  a  decree  of  the  court,  and  there  has  been  false  represen- 
tation or  undue  concealment  in  the  conditions  or  particulars  of 
sale,  or  a  good  title  cannot  be  shown,  the  sale  will  be  set  aside 
if  application  be  made  before  conveyance  is  executed.^  If  the 
conveyance  be  executed,  the  purchaser  must  take  the  conse- 
quences, and  can  only  rely  on  the  covenants.* 

The  court  will  not  rescind  a  transaction  without  requiring 
the  party  in  whose  favor  it  interferes,  to  restore  the  party 
against  whom  relief  is  sought,  as  far  as  possible,  to  that  which 
shall  be  a  just  situation,  with  reference  to  the  rights  which  he 
held  antecedently  to  the  transaction.^*     The  terms  on  which  a 


'  Whitmore  v.  Mackoson,   16  Eeav.  ■'Thomas  v.   Powell,    2    Cox,    894; 

128.  M'CuUoch  V.  Gregory,  1  K.  tfe  J.  286. 

^  Laclilan  v.  Reynolds,  Kay,  55.  ^  Bellamy  v.  Sabine,  2  Ph.  425;  King 

^  Jb.     McCiilloch  V.  Greo-ory,  1  K.  &  v.  Savery,  5  11.  L.  627. 

J.  286.     See  Ward  v.  Tratlie,  14  Sim. 

82;  Linehan  v.  Cotter,  1  Ir.  Eq.  176. 


*  The  rules  of  law  relating  to  specific  performance  and  those  applied 
to  the  rescission  of  contracts,  although  not  identically  the  same,  have 
a  near  affinity  for  each  other.  Boyce  v.  Grundy,  3  Pet.  210 ;  Beck  v. 
Simmons,  7  Ala.  71 ;  Walker  v.  Collins,  11  Ohio,  31 ;  Jackson  v.  Ashton, 
11  Pet.  229. 

Mere  deterioration  of  the  property  is  no  objection  to  a  rescission  of  the 


344  REMEDIES. 

transaction  will  be  rescinded  vary  with  the  particular  circum- 
stances of  the  case.  In  some  cases  deeds  have  been  absolutelj 
rescinded  ^  by  tlie  court  decreeing  them  to  be  delivered  up  to 
be  cancelled ;  ^  but  the  usual  course  of  the  court  in  setting 
aside  a  transaction,  is  to  proceed  on  the  maxim,  that,  he  who 
seeks  equity  must  do  equity.^  Instruments,  accordingly,  are 
either  set  aside  on  repayment  of  the  actual  consideration  with 
interest  thereon  at  a  reasonable  rate,^  *  or  are  directed  to  stand 
as  a  security  for  the  moneys  actually  advanced,  with  interest 
thereon  at  a  reasonable  i*ate,^  or  for  what  upon  investigation 
shall  be  ascertained  to  be  really  due.^  f  If  the  property  is 
personal,  a  decree  for  the  repayment  of  moneys,  or  the  delivery 
up  and  cancellation  of  the  instrument,  will  be  complete  relief, 

'  Bates  w.  Graves,  2  Ves.  Jr.  287.  Marlboroug-h,  2  Sw.   166;    Peacock  v. 

"See  Jackman   v.  Mitchell,  13  Ves.  Evans,  16  Ves.  512;    Colcloun-h  v.  Bol- 

586.  ger,  4  Dow.  64 ;    King  v.  Hamlet,  2  M. 

'  Wilkinson  v.  Fowkes,  9  Ha.  594.  &  K.  456  ;    3  CI.  <fe  Fin.   218  ;    Earl  of 

*  Barnadiston    v.    Lingood,    2    Atk.  Aldboioiigh  v.  Trve,  ^  CI.  &  Fin.  436, 

133;    Lawley  v.  Hooper,  3  Atk.   278;  462;    Carter  v.   Palmer,   8  CI.   &  Fin. 

Gwynne    v.    Heaton,    1    Bro.  C.  C.  1 ;  657,  11  Bligh,  39Y;  Pillage  v.  Southee, 

Lovell  V.  Hicks,  2  Y.  &  C.  55;    Wilson  9  Ha.  540;    Baker  v.  Bradley,  7  D.  M. 

V.  Short,  6  Ha.  384 ;    Ingram  v.  Thorp,  &  G.  597 ;   Croft  v.  Graham,  2  D.  J.  & 

1  Ha.  67.  S.  155. 

^  Proof  z».Hines,  Forrest,  111;  Crowe  "Wharton  v.   May,  5  Ves.  27;    Pur- 

V.  Ballard,  3  Bro.  C.  C.  120;    Kewnian  cell  v.  Macnamara,  14  Ves.  91;  Watt  v. 

V.    Payne,    2   Ves.   Jr.    199;    Byne  v.  Grove,  2  ^ch.  <fe  Lef.  492;  Longmate  v. 

Vivian,  5  Ves.  604;    Davis  v.  Duke  of  Ledger,  2  Gifif.  157. 


contract.  Veazie  v.  Williams,  8  How.  134;  Buck  v.  McCaughtrey,  5  Mon. 
216  ;  Glover  «.  Smith,  1  Dessau.  433. 

When  a  jjortion  ef  the  property  has  passed  to  the  hands  of  a  lona  fide 
holder,  the  court  may  enter  a  decree  against  the  defendant  for  its  value, 
and  compel  a  surrender  of  the  balance.     McNeil  «.  Turner,  6  Munf.  316. 

A  decree  for  a  rescission  of  the  contract  without  a  restoration  of  the 
property,  is  erroneous.  Camplin  v.  Burton,  2  J.  J.  Marsh.  216;  Waters  «. 
Lemmon,  4  Ohio,  229. 

A  vendee  who  has  bought  in  an  adverse  claim  cannot  obtain  a  rescis- 
sion of  the  contract  without  surrendering  the  property.  Grundy  v.  Jack- 
son, 1  Litt.  11. 

*  Gardner  v.  Ogden,  22  N.  Y.  327  ;  Wellford  «.  Chancellor,  5  Gratt.  39; 
Miles  r.  Irvin,  1  McCord's  Ch.  524. 

t  Smith  «.  Lansing,  22  N.  Y.  520;  Owing's  Case,  1  Bland,  370;  Currie 
«.  Coules,  6  Bosw.  452. 


REMEDIES.  345 

altliougli  the  legal  interest  should  have  been  conveyed.*  But 
if  the  subject-matter  of  the  transaction  be  real  estate,  it  is 
usual  to  direct  a  reconveyance,  because  if  this  is  not  done,  a 
question  may  arise  as  to  what  has  become  of  the  real  estate.^ 
If,  however,  the  deed  is  not  merely  voidable,  but  wholly  void, 
no  reconveyance  is  necessary.^ 

The  terms  on  which  a  reconveyance  will  be  ordered,  are 
the  repayment  of  the  purchase-moneys  and  all  sums  laid  out 
in  improvements  and  repairs  of  a  permanent  and  substan- 
tial nature,  by  which  the  present  value  is  improved,  with 
interest  thereon  from  the  times  when  they  were  actually  dis- 
bursed.*    On  the  other  hand,  charges  for  the  deterioration  of 

'  See    1    Ves.    376  ;    Williamsou   v.  Clark  v.  Malpas,  31  L.  J.  Ch.  696  ;    but 

Gihon,  2  Sch.  &  Lef.  35*7;  Eastabrook  see  Hoghton  v.  Hoghton,  15  Beav.  278; 

V.  Scott,  3  Ves.  455;    Cooper  v.  Joel,  1  Alt.  Gen.  v.  Magdalen  College,  18  Beav. 

B.   F.  <fej.  240;    Slim  v.  Croucher, 'i6.  255 
520.  ^  Ogilvie  v.  Jeaffreson,  2  Giff.  381. 

'^Pickett  V.   LoggoD,   14  Ves.  231; 


*  Harding  v.  Handy,  11  Wheat.  103 ;  Brooke  v.  Berry,  2  Gill,  83  ; 
Moseley  i).  Buck,  3  IMunf.  332 ;  Tyler  v.  Black,  13  How.  230 ;  Glass  t. 
Brown,  6  Mon.  356  ;  Ellis  v.  Graves,  5  Dana,  119  ;  Bullock  v.  Beemis,  1  A- 
K.  Jrarsh.  433 ;  Caldwell  v.  White,  5  J.  J.  Marsh.  207. 

If  the  vendee  buys  up  a  better  title  than  that  of  the  vendor,  and  the 
vendor  is  not  guilty  of  fraud,  he  can  only  be  compelled  to  refund  to  the 
vendee  the  amount  paid  for  the  better  title  and  a  reasonable  compensation 
for  trouble  and  expenses.     Galloway  v.  Finlcy,  12  Pet.  264. 

The  purchaser  will  not  be  compelled  to  account  for  rent  -when  he  is 
liable  to  others  for  it.     Glass  v.  Brown,  0  Mon.  356. 

The  use  of  the  property  by  the  vendee  is  generally  held  to  balance  the 
interest  on  the  purchase  money.  Talbot  v.  Subree,  1  Dana,  56  ;  Williams 
V.  Rogers,  2  Dana,  374 ;  Williams  v.  Wilson,  4  Dana,  507. 

The  rule  does  not  apply  to  improductive  lauds.  Shields  v.  Bog- 
liolo,  7  Mo.  134. 

A  grantee,  in  case  of  constructive  fraud,  is  not  responsible  for  profits. 
When,  however,  there  is  actual  fraud,  the  grantee  may  be  charged  with 
profits.     Backhouse  v.  Jetts,  1  Brock,  500. 

There  is  no  instance  of  any  reimbursement  or  indemnity  aflPorded  by  a 
court  of  equity  to  a  particeps  criminis  in  a  case  of  positive  fraud  upon 
creditors.    Sands  v.  Codwise,4  Johns.  336;  Borland  v.  Walker,  7  Ala.  269; 
White  V.  Graves,  7  J.  J.  Marsh.  523;  Weedon  v.  Hawes,  10  Ct.  50. 
23 


346  REMEDIES. 

tlie  property  mnst  be  set  off  against  the  allowances  for  perma- 
nent improvements.  The  party  in  possession  must  also 
account  for  all  rents  received  by  him  and  for  all  profits,  such 
as  moneys  arising  from  the  sale  of  timber,  or  from  working 
mines,  with  interest  thereon,  from  the  times  of  the  receipt 
thereof.  He  must  also  pay  an  occupation  rent  for  such  part  of 
the  estate  as  may  have  been  in  his  actual  possession.'^  Allow- 
ance for  lasting  improvements  can  only  be  for  such  as  were 
made  during  the  period  of  accounting  for  the  rents.^  The 
account  of  rents  and  profits  on  the  one  side,  and  of  lasting 
improvements  on  the  other,  must  be  carried  back  to  the  same 
time.^  The  decree  is  eiToneous  if  it  directs  the  account  of 
rents  and  profits  to  begin  at  one  time,  and  the  account  of 
lasting  improvements  at  another,  unless  there  is  some  special 
reason  for  doing  so.*  The  party  in  possession  would  also,  it  is 
conceived,  be  required  to  reinstate  premises  which  he  had  ma- 
terially altered  ;  e.  g.  &  private  residence  into  a  shop.** 


'Savage  v.   Tavlor,    Forrest,    234;  London,   lOH.  L.  26;    Stepney  v.  Bid- 

Att.-Gen.    v.   Balliol   College.    9   Mod.  diilph,   13  W.  R.   576;    5  N.   R.   506; 

412;    York  Buildings  Co.  v.  M'Kenzie,  Dally  v.  Wonham,  33  Beav.  162.     See 

3  Pat.  So.  App.  Ca.  398,  579, 3  Ross's  L.  Douglas  v.    Culverwell,    31    L.   J.   Ch. 

C.  Sc.   305 ;    Ward  v.  Ilartpole,  cit.  3  543  ;    Cooper  v.  Phibbs,  L.  R.  2  App. 

Bligh,  470;    Ex-parte  Hughes,   6  Ves.  Ca.  l7l. 

617;    Ex-parte  Bennett,  10  Ves.    381;  '^  Att.-Gen.   v.   Earl  of    Craven,    21 

Murray  v.  Palmer,   2  Sch.  &  Lef.  490;  Beav.  411. 

Edwards  o.  M'Cleay,  Coop.  308,  2  Sw.  ^  2seesom  v.  Clarkson,  4  Ha.  103. 

287;    Donovan    v    Fricker,  Jac.    165;  *  76.     See   as   to   allowance   for  im- 

Trevelyan  v.  Charter,  4  L.  J.  Ch.  N.  S.  provements  of  charity  property,  Att.- 

214;    trevelyan  v.  White  1  Bear.  588;  Gen.  v.  Kerr,  2  Beav.  429;  Att.-Gen.  v. 

Mulliallen  v.  "Marum,  3  Dr.  &.  War.  337;  Magdalen  College,  18  Beav.  254;    Att.- 

Gibson  v.  D'Este,  2  Y.  &  C.  C.  C.  581 ;  Gen.  v.  Davey,  19  Beav.  527. 

Mill  V.  Hill,  3  H.  L.  828;  Davey  v.  Dur-  °  Donovan  v.  Fricker,  Jac.  165. 
rant,  1  D.  i:  J.  554 ;  Tyrrell  v.  Bank  of 


Reimbursement  may  be  allowed  wlicn  there  is  only  constractive  and 
no  actual  fraud.  Gardiner  Bank  «.  Wheaton,  8  Greenl.  373 ;  Parker  v. 
Holmes,  2  HilFs  Ch.  95 ;  Cummings  v.  McCullough,  5  Ala.  324. 

If  a  party  has  allowed  his  name  to  be  used  in  a  fraudulent  assignment, 
and  suffered  the  property  to  be  squandered,  he  will  be  compelled  to 
account  for  its  value  to  the  creditors.     Hughes  v.  Bloomer,  9  Paige,  269. 


REMEDIES.  317 

The  value  of  permanent  and  substantial  improvements  of 
all  kinds,  by  whicli  the  present  value  of  the  property  is  im- 
proved, such  as  for  the  erection  of  a  mansion  house,  and  for 
plantations  of  shrubs,  will  be  allowed.^  *  But  no  allowance 
will  be  made  for  moneys  which  liave  been  expended  by  the 
party  in.  possession,  as  a  matter  of  taste  or  personal  enjoy- 
ment.^ JSTor  will  allowance  be  made  for  moneys  which  have 
been  expended  upon  the  property  with  the  view  of  rendering 
it  impossible  for  the  real  owner  to  recover  his  estate,  and  so 
improving  him  out  of  it,  as  it  may  be  called.^ 

A  purchaser  who  seeks  to  set  aside  a  transaction  on  the 
ground  of  fraud,  should  specially  pray  in  his  bill  for  the  repay- 
ment of  repairs  and  improvements.  He  will  be  credited  with 
the  amount  of  repairs  and  improvements,  executed  before  the 
discovery  of  the  defect  in  title,  if  their  repayment  is  specially 
prayed  by  the  bill;*  and,  probably,  of  necessary  repairs  exe- 
cuted during  or  pending  litigation,  if  specially  prayed.' 

In  a  case  where  a  purchase  was  set  aside  for  fraud,  and  the 
purchaser  was  decreed  to  pay  an  occupation  rent,  receiving 
back  his  purchase  moneys  with  interest,  there  being  a  consider- 
able excess  of  the  rent  over  the  interest,  annual  rests  were 
directed,  until  the  principal  should  be  liquidated;^  but  a 
special  case  must  be  shown  to  warrant  such  a  direction.' 

>  York  Piuilditif^s  Co.  v.  M'Kenzie,  3  Stepney  v.  Biddulph,   5  N.  R.  505,  13 

Pat.   Sc.  App.  398,  579 ;    3  Ross.  L.  C.  W.    R.    576,    Sug.   V.   <fe  P.  287.     See 

So.  305;    Stepney  v.  Biddulph,   13  W.  Pelly  v.  Bascombe,  4  Giff.  390. 

R   576   5  N.  U.  506.  ■*  See  Edwards  v.  M'Cleav,  2  Sw.  289. 

'•^York  Buildings  Co.  v.  M'Kenzie,  3  "bug.  V.    &  P.  279;    Dart.  V.  &  P. 

Pat.  Sc.  A  p.  398,  579,  3  Ross.  L.  C.  Sc.  523. 

305;    Att.-Gen.   t\  Kerr,  2  Beav.  429  ;  °  Donovan  ?j.  Fricker,  Jac.  165. 

Mill'*'-  Hill,  3  H.  L.  828.  ''  See  Neesom  v.  Clarkson,  4  Ila.  97. 

'Kenney  v.   Brown,   3   Ridg.    518; 


*  Miclioucl  B.  Girod,  4  ITow.  503 ;  Leary  \\  Cox,  2  Dana,  4G9. 

Losses  incurred  in  making  improvements  and  constructing  -works  in  a 
saltpetre,  cave  which  has  been  misrepresented,  can  not  be  allowed.  Pey- 
ton -y.  Butler,  3  Hey,  141. 


348  REMEDIES. 

It  is  not  tlie  course  of  the  court  to  direct  an  account  of  wil- 
ful nef^lect  and  default,  in  cases  where  the  possession  is  not 
primarily  referable  to  the  character  of  mortgagee.^  When 
persons,  though  in  fact  mortgagees,  enter  into  possession  of 
rents  and  profits  in  another  character,  they  cannot  be  subjected 
to  that  special  liability.'^  The  rule  may  be  different  if  a  special 
case  of  fraud  be  made  out.^ 

If  there  has  been  long  delay  in  filing  the  bill,  the  ac- 
counts of  rents  and  profits  will  be  limited  to  the  time  of  filing 
the  bill/* 

If  the  transaction  complained  of  is  one  in  which  a  trustee 
or  agent,  employed  to  purchase,  has  sold  property  of  his  owu 
surreptitiously,  to  his  cestui  que  trust  or  principal,  the  right 
of  the  latter  is  not  merely  to  rescind  the  contract  in  toto,  or  to 
abide  by  it  in  its  integrity,  but  to  hold  the  property,  and  to 
pay  no  more  for  it  than  the  trustee  or  agent  himself  had  paid.^ 
If  the  agent  sells  to  his  principal  property  of  his  own  for 
which  he  has  paid  nothing,  the  principal  can  only  retain  the 
property  upon  the  terms  of  paying  its  proper  value.^ 

If  the  trustee,  or  other  person,  filling  a  fiduciary  character, 
has  purchased  surreptitiously  from  the  person  towards  whom 
he  stands  in  such  relation,  and  the  latter  does  not  wish  for  a 

'  Murray   v.   Palmer,  2  Sch.   &  Lef.  '  Parkinson  v.  Hanbury,  L.  R.  2  App, 

486-  Trevelvan  v.  Charter,  4  L.  J.  Ch.  Ca.  1. 

N.  S.  214;    Miirpby  v.  O'Shea,  2  J.  <fe  '  Howell  v.  Howell,  2  M.  &  C.  478 

L.  422 ;    Sherwin  v.  Shakespeare,  5  D.  Adams  v.  Sworder,  2  D.  J.  <fe  S.  44 

M  <fe  G.  531 ;  Lord  Kensington  v.  Bou-  Parkinson  v.  Hanbury,  L.  R.  2  App.  Ca, 

verie,  7  D.  M.  &  G.  134,  156, 157;  Par-  15. 

kinson  ».   Hanbury,  2  D.  J.  &  S.  450.  *  Pickett  v.   Loggon,    14  Ves.    231 

See  decree  in  Gresley  v.  Mousley,  4  D.  Mulhallen  v.  Marura,  3  Dr.  <fe  War.  317 
&  J.  101 ;  but  see  decree  in  Murray  v.  °  Bank  of  London  v.  Tyrrell,  10  H 

Palmer,  2  Sch.  &  Lef.  489;  Gibson?;.  L.  26. 

D'Este'2  Y.  &  C.  C.  C.  581.  ^  Great  Luxemburg  Railway  Co.   v. 

Magnay,  25  Beav.  695. 


*  "WTien  an  account  consists  of  numerous  items,  rests  are  proper  substi- 
tutes for  a  computation  of  interest  on  each  item.  Harding  v.  Handy,  11 
Wheat.  103. 


REMEDIES.  349 

reconveyance  of  tlie  property,  tlie  former  will  be  held  strictly 
to  his  bargain,  if  it  be  beneficial  to  the  estate.  If  it  be  not 
beneficial  to  the  estate,  the  property  will  be  ordered  to  be  re- 
sold and  reconveyed  to  another  purchaser,  if  a  better  can  be 
found  ;  otherwise,  he  will  be  held  to  his  purchase  ;  if  a  better 
purchaser  be  found,  he  will  be  regarded  as  a  trustee  for  the 
profit  on  the  resale,^  and  will  be  held  responsible  for  any  loss 
which  his  interference  with  the  gale  may  have  occasioned.^  In 
a  case  where  an  estate  sold  under  a  decree  of  the  court  was 
purchased  by  a  solicitor  in  the  cause  without  leave  of  the  court, 
the  court,  after  the  purchase  had  been  confirmed,  ordered  the 
estate  to  be  again  offered  for  sale  at  the  price  at  which  he  had 
purchased  it ;  and,  if  there  should  be  no  higher  price,  that  he 
sliould  be  held  to  hi^  purchase.'  In  Williamson  v.  Seaber,* 
where  permanent  improvements  had  been  made,  the  estate 
was  put  up  at  its  improved  value,  subject  to  the  question 
whether  he  should  be  allowed  the  value  of  such  improvements. 
But  the  usual  course  is  to  order  that  the  expense  of  repairs 
and  improvements,  not  only  substantial  and  lasting,  but  such 
as  have  a  tendency  to  bring  the  estate  to  a  better  sale,  after 
making  an  allowance  for  acts  that  deteriorate  the  value  of  the 
estate,  shall  be  added  to  the  purchase-moneys,  and  that  the 
estate  shall  be  put  up  at  the  accumulated  sum.^  If  the  trustee, 
or  other  person  filling  a  fiduciary  character,  who  has  purchased 
property  surreptitiously  from  the  person  towards  whom  he 
stands  in  such  relation,  has  resold  the  property  at  a  profit,  he 
must  account  for  such  profit  with  interest.® 

'  Ex-pnrte  Reynolds,    5  Ves.    707 ;  ^  Ex-parte  Reynolds,  5  Ves.  707 ;  Ex- 

Ex-payte  llugliea,  6  Ves.  617  ;  Randall  parte  Lacey,  6  Ves.  625,  629;  Ex-parte 

V.    Erriiii^ton,    10   Ves.  42s ;  Ex-partc  Bennett,  10  Ves.  381. 

Mor<:;an,'l2  Ve3.  6;  Ex-parte  Lewis,  1  °  Fox  v.  Macreth,  2  Bro.  C.  C.  400; 

Gl.  tk  Ja.  69.  Hall   !'.  Ilailett,    1    Cox,   134;    Ex-jmrit 

'  Ex-parie  Lewis,  ih.  Reynolds,   5    Ves.   707 ;    Brooknian  v. 

'Sidney   v.    Ranker,    12   Sim.    118.  Rotliscliild,  3  Sim.  153;    Rdthscliild  «. 

See  Neltiiorpe  v.  Peunyman,  14  Ves,  Brookmnn,    2     Dow  <fe   Cl.    188.     See 

517.  Bank  of  London  v.  Tyrrell,    10  II.   L. 

*  3  y.  (fe  C.  717.  26. 


350  EEMEDIES. 

In  a  case  where  a  servant  took  an  agresraent  for  a  lease  of 
premises  in  liis  own  name,  "but  really  as  the  agent  of  liis  master, 
and  having  afterwards  denied  the  agency,  claimed  to  hold  the 
premises  for  his  own  benefit,  he  was  decreed  by  the  court  to 
be  a  trustee  for  his  master,^ 

Where  a  transaction  is  set  aside  on  the  ground  of  fraud 
the  party  complaining  will  be  allowed  all  costs,  charges,  and 
expenses  properly  incurred  in  respect  of  and  incident  to  the 
transaction,  including  the  costs  of  conveyance.^ 

In  taking  the  accounts  between  the  parties,  interest  at  the 
rate  of  £4  per  cent,  per  annum,  will  be  allowed  on  all  moneys 
expended  in  lasting  and  substantial  improvements  by  the  party 
in  possession.  The  same  rate  of  interest  will,  as  a  general 
rule,  be  debited  to  him  in  respect  of  moneys,  &c.,  &c.,  received 
by  him,  and  of  costs,  charges,  and  expenses  properly  incurred 
by  the  complaining  party .^  If,  however,  there  has  been  a 
breach  of  duty,  and  violation  of  trust,  he  will  be  debited  with 
interest  on  moneys  received,  or  profits  made  by  him,  at  tbe 
rate  of  £5  per  cent.*  If  there  has  been  negligence  on  the  part 
of  the  complaining  party,  interest  will  not  be  allowed.' 

In  ordinary  cases,  when  the  court  sets  aside  a  transaction, 
the  defendant  has  a  right  to  insist  upon  an  account  before  he 
is  called  upon  to  reconvey  ;  ®  *  but  a  defendant  who  is  in  pos- 

"  Earl  of  Stamford  v.  Dawson,  15  W.  Browne,   2  Coll.  1  T ;  Att-Gen.  v.  Al- 

R.  89G.  foi-cl.  4  D.  M  &  G.  843  ;  Mayor,  <fec.,  of 

'  Edwards  v.   M'Cleay,    2  Sw.  289;  Berwick  v.  Murray,  7  D.  M.  &  G.  513; 

Berry    v.    Armitstead,    2   Keen,    221;  and  is  someti  nes  even  now  allowed; 

MuUiallen   v.    Marum,    3  Dr.   <fe  War.  Stepney  t'.  Biddulpli,  13  W.  R.  576. 
317;   Gibson  v.  D'Este,  2  Y.  &  C.  C.  0.  "  Benson   v.  licalhorn,   1  Y.  &  0.  C. 

581 ';    Slim  v.   Crouclier,    1   D.    F.  cfe  J.  C.    340;    Mayor,    &c.,   of    Berwick   v. 

520;  Cartledge  v.  Radbourn,  14  W.  R.  Murray,  7  D.  M.   &  G.  518;  Bank  ol 

6(^)4  '  London  v.  Tyrrell,   10  H.  L.  63.     See 

'Gibson  v.  D'Este,  2  Y.  &  C.  C.  C.  St.  Aubyn  v.  Smart,  L.  R.  5  Eq.  183. 
581;  Sharp   v.  L'.'ach,   31   Beav.  503;  *  M'CuUocli  v.  Gregory,  1  X.   <fe  J. 

Maturin  v.  Tredennick,  12  W.  R.   740.  286. 

See  Lovell  v.  Hicks,   2  Y.  <fe  C.  53 ;  £5  «  Murray  v.  Palmer,  2  Sch.  &  Lef. 

per  cent,    was   formerly   allowed,    see  490 ;  Gibson  v.  D'Este,  2  Y.  <t  C.  C.  C. 

Jac     166,    179;    sec   also  Edwards   v.  581 ;  Wilkinson  t;.  Fowkes,  9  Ha  594. 


♦  Miller  v.  Colton,  5  Geo.  341 ;  Bibb  v.  Pratber,  1  Bibb,  313. 


REMEDIES.  351 

session  under  a  pretended  purchase  cannot,  if  tlie  court  shall 
be  of  opinion  that  there  has  been  in  fact  no  pnrcli  use,  insist 
upon  an  account  of  moneys  paid  by,  or  owing  to  him,  which  he 
alleged,  but  failed  to  prove,  w^as  the  consideration  agreed  upon 
for  such  purchase.*  If  a  reconveyance  is  ordered,  and  an  ac- 
count of  rents  and  payment  of  the  balance  is  ordered,  but  no 
lien  for  such  balance  is  given  on  the  estate,  the  conveyance 
must  be  made  at  once,  without  waiting  for  the  result  of  the 
accounts.^ 

In  one  case  the  purchaser,  obtaining  a  decree  for  rescinding 
a  contract,  on  the  ground  of  fraud,  was  allowed  to  follow  the 
stock  in  which  part  of  the  purchase-money  had  been  invested.* 

If  the  transaction  into  W'hich  a  man  had  been  induced  by 
fraud  to  enter  is  a  partnership,  the  terms  of  rescission  will  be 
that  his  partner  or  copartners  repay  him  whatever  he  may 
have  paid,  with  interest  thereon,  and  indemnify  him  against 
all  claims  and  demands  which  he  may  have  become  subject  to 
by  reason  of  his  having  entered  into  the  partnership  ;  he,  on 
the  other  hand,  accounting  for  what  he  may  have  received 
since  his  entry  into  the  concern.* 

If  a  man  has  been  induced  by  false  representations  in  the 
prospectus  of  a  company  to  take  shares  from  the  company,  he 
is  entitled  to  recover  his  money,  and  to  have  his  name  removed 
from  the  register.^  If  he  has  received  dividends  before  dis- 
covering the  fraud,  the  terms  of  rescission  are,  that  his  name 
shall  be  removed  from  the  register,  and  that  an  account  shall 
be  taken  of  what  sums  have  been  paid  to  him  by  the  company 
and  of  what  sums  he  has  received  with  interest  at  a  reasonable 
rate,  and  that  the  balance  shall  be  paid  to  him  with  all  costs.® 


*  Wilkinson  v.  Fowkes,  ib.  Estates  Investment  Co.,  L.  R.  3  Eq. 
'Trevelyan  V.  Charter,  9  Beav.  140.  122;  Fox's  Case,  37  L.  J.  Ch.  257; 
•Small  V.  Attwood,  Younj^e,  507.  Chester  v.  Spargo,  16  W.  11.  576. 

*  Liiidl.  on  Tart.  p.  929.    '  "  Kent  v.  Freehold  Land  and  Brick- 

*  Blake's  Case,  34  Beav.  639  ;  Ross  v.  making  Co.,  L.  R.  i  Eq.  598. 


352  REMEDIES. 

"Where  a  person,  in  order  to  defraud  his  creditors,  has 
transferred  stock  to  a  fictitious  person,  upon  proof  of  the  fact, 
it  will  be  ordered  that  the  fictitious  name  shall  be  erased  from 
the  register,  and  that  the  name  of  the  real  owner  be  inserted.^ 

If  a  case  for  rescission  be  not  made  out,  the  bill  may  be 
dismissed,  without  prejudice  to  any  action  at  law  that  the 
plaintifi"  may  bring.'' 

If  an  instrument  be  founded  on  fraud,  there  can  be  no 
rectification.  The  com-t  can  reform  an  instrument  only  where 
its  incorrectness  arises  from  mistake,  Irom  ignorance,  or  acci- 
dent, and  does  not  go  to  impeach  the  general  fairness  of  the 
transaction.^ 

If  a  man's  name  has  been  placed  on  the  register  of  share- 
holders of  a  company,  without  his  consent,  through  the  false 
representations  of  a  third  party,  and  an  order  to  wind  up  the 
company  has  been  subsequently  made,  the  court  will  order  it 
to  be  removed  from  the  register.* 

In  cases  where  a  man  has  fraudulently  appropriated  to 
his  own  use  moneys  belonging  to  another,  the  appropriate 
remedy  of  the  Court  of  Chancery  is  by  declaring  him  a 
trustee  of  such  moneys,  and  ordering  him  to  make  them 
good.^ 

A  court  of  equity  will  relieve  against  fraud  in  judicial 
proceedings.  If  a  party  has  been  induced  by  fraud  to  consent 
to  a  decree,  or  if  fraud  in  obtaining  a  decree  has  been  prac- 
ticed on  the  court,  the  court  will  grant  relief  on  being  satisfied 
that  the  conduct  of  the  party  himself  has  not  deprived  him  of 
his  title  to  relief,  and  that  the  relief  can  be  given  with  due 
regard  to  the  just  interests  of  others.® 

»  Green  v.  Bank  of  England,  3  Y.  <fe  *  Re  Patent  File  Co.,  Ex-parte  Wliite, 

C    T22 ;    Arthur  v.   Midland    Kailway  15  W.  R.  754. 

Co.,  3  K.  &  J.  204.  "  Rolle  v.  Gregory.  34  L.  J.  Ch.  274 ; 

*'Bartlett  v.  Salmon,  6  D.  M.  &  G.  33.  Charlton  v.  Coombs,  4  Giif.  385. 

See  Evans  v.  Bicknell,  6  Yes.  191.  "  Barnesly  v.  Powell,  1  Yes.  120,  285; 

^  Watt  V.  Grove,  2  Sch.  <t  Lef.  502.  Davenport   v.   Stafford,    8   Beav.  622, 

See  Hartopp  v.  Hartopp,  21  Beav.  259.  supra,  p.  43. 


EEMEDIES.  353 

"Wliere  any  fraud  or  collusion  Las  been  practiced,  a  sale  and 
conveyance  cannot  be  held  valid,  altbougli  tliey  have  the  color- 
able protection  of  a  decree  of  a  court  of  equity.^  *  The  orders 
of  the  court  cannot,  however,  be  set  aside  on  grounds  less 
strong  than  those  which  would  be  recpiired  to  set  aside  trans- 
actions between  competent  parties.^  To  set  aside,  on  the 
ground  of  fraud,  a  decree  signed  and  enrolled,  actual  positive 
fraud  must  be  shown.  There  must  be  on  the  part  of  the 
person  chargeable  with  it,  the  Qnalus  animus,  the  mala  mens 
putting  itself  in  motion,  and  acting  in  order  to  take  an  undue 
advantage  for  the  purpose  of  actually  and  knowingly  commit- 
ting a  fraud.  The  fraud  must  be  a  fraud  which  can  be  ex- 
plained and  defined  upon  the  face  of  the  decree.  Mere  irreg- 
ularity, or  the  insisting  upon  rights  which,  upon  a  due 
investigation  of  those  rights,  might  be  found  to  be  overstated 
or  overestimated,  is  not  the  kind  of  fraud  which  will  authorize 
the  court  to  set  aside  a  decree.' 

Though  the  court  cannot  set  aside  the  judgment  of  a 
common  law  court  obtained  against  conscience,  it  will  consider 
the  person  who  has  obtained  the  judgment  as  a  trustee,  and 
will  decree  him  to  reconvey  any  property  that  he  may  have 
become  possessed  of  under  the  judgment,  on  the  ground  of 
laying  hold  of  his  conscience,  so  as  to  make  him  do  that 
which  is  necessary  to  restore  matters  as  before.*  With 
respect  to  fines  which  had  been  obtained  by  fraud,  the  court 
would  not  absolutely  set  aside  a  fine  so  obtained,  nor  would 

'  Colclough  V.  Bolger,  4  Dow.  64.  '  Patch  v.  Ward,  L.  R.   3  Ch.  App. 

"  Brooke  v.  Lord  Mostyn,  2  D.  J.  «fe  S.       203. 
416  •  *  Barnesly  v.  Bowell,  1  Ves.  120,  285, 


*  Galatian  v.  Envin,  1  Hopk.  48. 

A  purchaser  who  has  oblaintd  a  decree  rescinding  the  deed,  and 
directing  a  reconveyance  and  repayment  of  the  purchase-money,  can  not 
secretly  recrrd  a  deed  of  conveyance  and  sell  the  property  under  an 
execution,  without  delivering  possession.  Buckner  v.  Forker,  7  Dana, 
60. 


354  REMEDIES. 

it  send  the  party  aggrieved  to  tlie  court  of  Common  Pleaa 
to  get  it  vacated.  The  course  of  the  court  was,  to  consider  all 
persons  taking  an  estate  under  the  fine,  with  notice  of  the 
fraud,  as  trustees  for  the  party  defrauded,  and  to  decree  a 
reconveyance  of  the  land,  on  the  general  ground  of  laying 
hold  of  the  conscience  of  the  parties  to  make  them  do  that 
which  was  necessary  for  restoring  matters  to  their  former 
position.^ 

Though  a  court  of  equity  has  no  jurisdiction  to  relieve 
against  fraud  in  obtaining  the  setting  up  or  execution  of  a 
will,^  it  may  relieve  against  a  probate  obtained  by  fraud  by 
convertino-  the  party  taking  under  the  instrument  into  a  trustee 
for  the  party  defrauded.^ 

"  The  cases,"  said  Lord  Lyndhurst,  in  Allen  v.  Maepher- 
son,*  "  in  which  this  court  has  declared  a  legatee  or  executor 
to  be  a  trustee  for  other  persons,  have  been  cases  in  which 
there  have  been  either  questions  of  construction,^  or  cases  in 
which  the  party  has  been  named  as  trustee,  or  has  engaged  to 
take  as  such,6  or  in  which  the  Court  of  Probate  could  aiford 
no  adequate  or  proper  remedy."  '  A  legacy  given  to  a  person 
in  a  character  which  the  legatee  does  not  fill,  and  by  the 
fraudulent  assumption  of  which  character  the  testator  has  been 
deceived,  will  not  take  effect.  A  false  character,  however, 
attributed  by  a  testator  to  a  legatee,  will  not  affect  the  validity 
of  the  legacy,  unless  the  false  character  has  been  acquired  by 
a  fraud  which  deceived  the  testator.^ 

A  charter  which  has  been  obtained  from  the  crown  by 

'  Crm?=e  Dig.  tit.  XXXV,  c.  xiv,  §  12.  *  1  H.  L.  214. 

See  Pickett  v.  Lougon,   14  Ves.  234;  '  Kennell  v.  Abbott,  4  Ves.  802. 

Hamiison  v.  ILiinpson,   3  V.   <fe  B.  42 ;  *  Thj-nn  v.  Thynn,  1  Vern.  296  ;  Ken- 

Langlcy  v.  Fisher,  9  I'eav.  100;  Tarle-  nell  v.  Abbott,  4  Ves.  802  ;  PoJmore  v. 

ton  V.  Liddeil,  17  Q.  B.  414.  Gunning,  V  Sim.   660;  supra,  p.   274, 

*  Allen  V.  Macpherson,   1  H.  L.  191 ;  275. 

supra    p  44.                                              '  '  See  Segrave  v.  Kirwan,  Beat.  157  j 

■^  Baniesley  v.  Powell,  1  Ves.  287 ;  Cbarlton  v.  Coombs,  4  Giff.  385 ;  Wil- 

Allen  V.  Macpherson,   1  Ph.  145 ;  1  II.  kinsim  v  Jongbiii,  L.  R.  2  Eq.  319. 

L  213.  "  Giles  v.  Giles,  1  Keen,  692. 


EEMEDIES.  355 

fraud,  may  be  repealed  by  sci.fa.j  but  so  long  as  it  remains 
unrepealed,  its  validity  cannot"  be  disputed.^ 

The  appropriate  remedy  of  tlie  Court  of  Chancery  against 
fraud  may,  under  the  peculiar  circumstance  of  the  case,  be  by 
way  of  injunction.  An  injunction  may  be  had  either  to 
restrain  proceedings  at  law  upon  an  instrument  which  is 
vitiated  by  fraud,  or  to  restrain  a  man  from  doing  acts  which 
amount  to  a  fraud,  in  the  extensive  signification  in  which  that 
term  is  understood  by  a  court  of  equity.  Although  a  man 
may  have  a  good  defence  at  law  to  an  action  on  an  instrument 
which  is  vitiated  by  fraud,  he  is  not  precluded  from  proceieding 
in  equity  to  restrain  the  action.^  If  there  be  an  equitable  case 
stated  by  the  bill,  there  is  jurisdiction  to  interfere  by  way  of 
injunction,  if  necessary,  and  also  by  way  of  ordenng  the 
instrument  to  be  delivered  up.^  * 

In  restraining  by  injunction  acts  which  are  fraudulent  in 
the  sense  of  a  court  of  equity,  the  court  exercises  a  most 
extensive  jurisdiction.  Injunctions  may  be  had  upon  a  proper 
case  being  made  out,  to  restrain  a  man  from  parting  with  or 
transferring  property,  or  paying  or  receiving  moneys,  tfec,  &c.,* 
from  negotiating  securities,^  from  selling  property,^  &e.,  &c. 

'See  Macbride  v.  Lindsay.  9  Ila.  5Y4.  '  Traill  v.  Baring,   33  L.  J.  Ch.   52  Y, 

See  as  to  setting  aside  letters  patent  -per  Turner,  L.  J.  mpra,  p.  4*7 ;  Kerr  on 

obtained  by  fraud,  Att.-Geu.  v.  Vernon,  luj.  33. 

I  Vern.  3fi9.  ''  Kerr  on  Inj.  695, 
''  Ferny] lough  v.  Leader,  15  L.  J.  Ch.  '  Hk 

458;  Londdn  Assurance  Co.  v.  Moses,  °  76.  592. 

II  L.  T.  532. 


*  Possession  alone  is  a  protection  against  a  title  obtained  by  fraud. 
Niles  V.  Anderson,  5  How.  (Miss.)  365. 

A  party  seeking  to  enjoin  a  judgment  upon  a  fraudulent  contract,  must 
assign  reasons  why  the  defence  was  not  made  at  law.  Allen  v.  Hopson,  1 
Freem.  27(5. 

A  parly  may  be  enjoined  from  claiming  more  under  a  deed  than  would 
pass  according  to  his  representations.     Harding  v.  Randall,  15  Me.  332. 

If  on  account  of  a  contract  between  A  and  B.  A  gave  bis  note  to  C. 
who  is  a  creditor  of  B.  A  can  not  be  relieved  from  his  note  because  of  a 
fraud  connnitted  by  B  in  his  contract  with  A.  Williamson  i\  liaunej',  1 
Freem.  Ch.  113. 


336  EEMEDIES. 

So,  also,  injunctions  may  be  had  to  restrain  the  piracy  of  trade 
marks.^  So,  also,  if  a  man  has  by  his  conduct  encouraged 
another  to  expend  moneys  on  property,  or  deal  in  a  matter  of 
interest,  a  court  of  equity  will  restrain  him  from  derogating 
from  the  interest  in  which  that  other  has  been  induced  to  deal, 
or  from  enforcing  his  legal  right  against  him,  unless  the  latter 
has  received  the  benefit  which  he  contemplated  at  the  time  he 
was  induced  to  alter  his  condition.^  Where,  accordingly,  a 
lessor,  pending  an  agreement  for  a  building  lease,  represented 
to  the  intended  lessee  that  he  could  not  obstruct  the  sea  view 
from  the  houses  to  be  built  by  the  lessee,  pursuant  to  the 
proposed  lease,  because  he  himself  was  a  lessee  under  a  lease 
for  999  years,  containing  covenants  which  restricted  him  from 
60  doing ;  but  after  the  building  lease  had  been  taken,  and  the 
houses  built  upon  the  faith  of  the  representation,  the  lessor 
surrendered  his  999  years'  lease,  and  took  a  new  lease,  omitting 
the  restrictive  covenants,  the  court  restrained  him,  by  injunc- 
tioil,  from  building  so  as  to  obstruct  the  sea  view.^  So,  also, 
where  on  one  of  two  partners  retiring  from  business,  it  was 
left  to  arbitration  to  determine  what  was  to  be  paid  to  the 
retiring  partner  for  the  good-will  of  the  business ;  and  the 
arbitrators,  on  the  clear  understanding  of  the  parties  that  the 
retiring  partner  would  not  set  up  trade  in  the  vicinity,  allowed 
him  £500  as  his  share  of  the  good-will,  but  the  award  was 
silent  on  the  subject ;  the  court,  nevertheless,  upon  parol 
evidence  of  the  understanding  on  which  the  award  was  made, 
restrained  him  from  carrying  on  trade  in  the  same  vicinity.* 
So,  also,  a  man  who  has  permitted  the  owner  of  the  adjoining 
premises  to  rebuild  them  to  a  greater  height  than  they  were 
before,  and  to  alter  his  ancient  lights,  and  to  open  new  ones, 


»  Kerr  on  Tnj.  474-489.  *  Pigcrott  v.  Stratton,  John.  359,  1  D. 

"  Supra,  p.  126.  F.  &  J.  33. 

*  Harrison  v.  Gardiner,  2  Madd.  198. 


REMEDIES.  357 

will  be  restrained  by  injunction  from  interrupting  the  lights 
after  tbej  are  completed.^ 

Where  the  aid  of  a  court  of  equity  is  sought  by  way  of 
specific  performance  of  a  contract,  the  principles  of  ethics 
have  a  more  extensive  sway  than  when  a  contract  is  sought 
to  be  rescinded.  The  court  is  not  bound  to  decree  specific 
performance  in  every  case  where  it  will  not  set  aside  a  con- 
tract, or  to  set  aside  every  contract  that  it  will  not  specifically 
perform.'^  When  the  reseision  of  a  contract  is  sought,  a  case 
must  be  made  out  showing  that  the  transaction  is  not  only 
unfit  to  be  acted  on  in  equity,  but  is  also  unfit  to  be  acted 
on  at  law,;^  but  it  does  not  follow,  though  a  contract  be  good 
in  point  of  law,  that  it  must  be  carried  into  execution  in 
equity.  Many  circumstances  may  operate  to  induce  a  court  of 
equity  to  refuse  its  assistance,  though  the  agreement  may 
stand  the  test  of  a  court  of  law.*  *  The  court  in  such  cases 
simply  refuses  to  interfere,  leaving  the  parties  to  such  conse- 
quences as  may  follow  from  the  legal  rights  which  the  contract 
may  have  given  them.^  f  Specific  performance  rests  with  the 
discretion  of  the  court  upon  a  view  of  all  the  circumstances^  ^ 

'  Cotching  V.  Bassett,  32  Beav.   101.  *  Martin  v.  Mitchell,  2  J.  <fe  W.  420; 

Seefurther,sT(^m,  127-133;  KeiT  on  Inj.  Bartlett  v.   Salmon,  6  D.  M.  <fe  G.  33  ; 

201-205,  349.  Ilisgins  v.  Samels,  2  J.  &  11.  4f)0. 

^Cadman   v.    Horner,    18   Ves.    10;  ^Bellamy    v.    Sabine,    2    Ph.   449; 

Vi"-ers  v.  Pike,  8  CI.  &  Fin.  645;  Wilde  Myers  v.  Watson,  1  Sim.  N.  S.  529. 

V.  "Ijibson,   1    H.  L.  007 ;   Rawlins   v.  '"  White  v.  Damon,  7  Ves.  33 ;  Rad- 

Wickham,'3  D.  &  J.  322.  cliffe    v.    Warrington,    12   Ves.    331  ; 

'  Vi"-ers  v.  Pike,  8  01.  &  Fin.  645.  Falcke  v.  Gray,  4  Drew.  659 ;   Watson 

See  wlllan  v.  Willan,  2  Dow.  275,  v.  Marston,  4  JD.  M.  &  G.  230. 


*  Henderson  v.  Hays,  3  Watts.  148  ;  McWhorter  v.  McMahon,  1  Clark.e, 
400  ;  Frisby  v.  BalluTiec,  4  Scum.  289 ;  Gould  v.  Womack,  2  Ala.  83. 

t  King  V.  Hamilton,  4  Pet.  311;  Eastland  v.  Vanarsdale,  3  Bibb,  274; 
Rice  V.  Rawlings,  Meigs,  496 ;  Hall  v.  Ross,  3  Hey,  200. 

I  Pratt  r,  Carroll,  8  Cranch,  471 ;  Reinicker  v.  Smith,  2  H.  &  J.  421 ; 
Perkins  v.  Wright,  3  H.  «&  McH.  324 ;  Leigh  v.  Crump,  1  Ired.  Eq.  299 ; 
Clitherall  v.  Ogilvie,  1  Dessau.  256. 

A  court  of  equity  will  not  set  up  a  deed  which  has  been  suppressed  as 


358  REMEDIES. 

and  with  an  eye  to  the  substantial  justice  of  the  ease.^  *  Where 
5>  party  calls  for  specific  performance,  he  must,  as  to  every 
part  of  the  transaction,  be  free  from  every  imputation  of  fraud 
or  deceit.  An  agreement  affected  by  misrepresentation,  or 
tainted  by  deceit,  is  incapable  of  being  made  the  subject  of  the 
interference  of  a  court  of  equity  in  order  to  compel  its  specific 
performance.^  t  Tliere  can  be  no  specific  performance  if  a 
material  and  important  fact  be  untruly  stated.^  It  is  no 
answer,  in  a  suit  for  specific  performance,  to  the  fact  of  the 
plaintiff  having  made  a  false  representation,  to  say  that  the 
defendant  was  imprudent.  A  man  who  calls  for  specific  per- 
formance must  be  able  to  show  that  his  conduct  has  been 
clear,  honorable,  and  fair.*  It  is  a  principle  in  equity  that  the 
com-t  must  see  its  way  very  clearly  before  it  will  decree 
specific  performance,  and  that  it  must  be  satisfied  as  to  the 
integrity  and  good  faith  of  the  party  seeking  its  interference.' 
Misrepresentation  as  to  a  small  portion  only  of  the  property, 
the  subject  of  the  contract,  will,  if  the  misrepresentation  is 
intentional,  prevent  a  man  from  coming  to  the  court  to  have 

^  King  V.  Hamilton,  4  Peters  (Amer.),  3  D.  F.  <fe  J.  YlS ;  Colby  v.  Gadsden,  16 

311  W.  R.  1185. 

»  Harris  v.  Kemble,  V  L.  J.  Ch.  83 ;  5  ^  Price  v.  Macaulay,  2  D.  M.  &  G. 

Bligh,  730.     See  Philipps  v.  Duke  of  339. 

Bucks,   1  Vern.   227;   Ellard   v.   Lord  ^  Cox  v.   Middleton,   2   Drew.    220; 

Llandaff,  1  Ba.  &  Be.  241;   Brealey  v.  Walters  v.  Morgan,  3  D  F.  &  J.  718. 

CoUins,  You.  317;  "Walters  v.  Morgan,  ^  Brealey  v.  Collins.  You.  327;   Wal- 
ters V.  Morgan,  3  D.  F.  &  J.  718. 


a  justifiable  guard  against  fraud  and  injustice  naeditated  agcainst  the 
grantor.     Chapman  v.  Chapman,  4  Call,  436. 

When  a  vendor  has  fraudulently  led  a  vendee  to  suppose  that  more 
land  would  pass  under  a  deed  than  did  pass,  he  may  be  compelled  to  give 
a  deed  for  the  residue.  Wiserall  v.  Hall,  3  Paige,  313;  Tyson  v.  Passmore, 
2  Barr,  122. 

*  Western  R.  R.  Co.  v.  Babcock,  6  Met.  346 ;  Quick  v.  Stuyvesant,  3 
Paige,  84 ;  Hopkins  v.  Stump,  2  H.  &  J.  301 ;  Ellis  v.  Burden,  1  Ala.  458. 

t  Thompson  i\  Tod,  Pet.  C.  C.  380;  Slack  r.  McLagan.  15  111.  242; 
Clement  r.  Reid,  9  Smed.  &  3Iar.  535;  Fuller  v.  Perkins,  7  Ohio,  196;  Car- 
berry  V.  TannehiU,  1  H.  &  J.  224. 


REMEDIES.  359 

the  contract  enforced.  It  is  not  sufficient  that  tlie  vendor 
offer  to  waive  tlie  portion  affected  by  tlie  representation.*  The 
effect  of  a  partial  misrepresentation  is  not  to  alter  or  modify 
the  agreement  pro  tanto,  but  to  destroy  it  entirely,  and  to 
operate  as  a  personal  bar  to  the  party  making  the  application.^ 
Misrepresentation  of  a  material  fact,  although  innocently  made, 
will  be  a  bar  to  the  application.'*  If  a  prospectus  be  issued 
containing  material  representations,  and  a  person  accepts 
shares  on  the  faith  of  the  representations,  the  party  who  made 
the  representations  cannot,  if  they  prove  to  be  untrue,  compel 
the  other  party  to  accept  the  shares,  although  he  believed 
what  he  stated  to  be  true.*  It  is  a  defence  to  a  bill  for  specific 
performance  that  the  plaintiff  has  made  inaccurate  representa- 
tions with  respect  to  the  property,  the  subject  of  the  contract, 
although  these  representations  proceeded  upon  and  had  refer- 
ence to  sources  of  information  which  were  equally  open  to  all 
parties,  and  might  have  enabled  the  defendant  to  detect  the 
alleged  inaccuracies,  if  the  evidence  shows  that  they  could  not 
have  been  easily  detected.^  There  may,  however,  be  specific 
performance,  although  the  description  of  the  property,  the 
subject  of  the;  contract,  be  incorrect,  if  it  appear  that  the  pur- 
chaser knew  at  the  time  of  the  purchase  that  the  representa- 
tion was  untrue,  or  inspected  the  property  before  making  the 
purchase,  and  so  acted  upon  his  own  judgment  in  the  matter ;" 


»  Viscount  Clermont  v.  Tasburfifh,  1  *  Ilarris  v.  Kcmble,  1  L.  J.  Ch.  85  ;  5 

J,  &  W.  119,  120.  Bligh,  '730.     See  Rawlins  v.  Wickham, 

'  'lb.     Stewart  v.  Alliston,  1  Mer.  26.  3  I).  «fe  J.  318;   Higgins  v.  Samels,  2  J. 

See   Rawlins  v.  Wickham,  3  D.  <fe  J.  &  H.  468;  Colby  v.  Gadsden,  15  W.  R. 

321.  1185. 

'  Ainslee  v.  Medlycott,  9  Ves.  13,  21 ;  *  Dyer  v.    Hargravc,   lO  Vcs.    505 ; 

Higginson   v.    Clowes,    15   Ves.     524;  Grant  ?>.  Munt,  Coop.  177  ;  Lord  Brooke 

Stewart  v.  Alliston,  1  Mer.  26;  Price  v.  v.  Roundthwaite,  5  Ha.  .306;  Haywood 

Macaulay,  2  D.  M.  &  G.  339;   Higgins  v.  Cope,  25  Beav.  140;  Clarke  v.Mack- 

V.  Samefs,  2  J.  <fe  H.  460;  Comp.  White  intosh,  4  Giff.  134;  Henderson  v.  Hud- 

V.   Bradshaw,    16  Jur.   738;    Hume  v.  son,  15  W.  R.  860;  Comp.  Higgins  >: 

Pocock,  L.  R.  1  Ch.  A])p.  379.  Samels,  2  J.  &  H.  468  ;  Vivers  y.  Tuck, 

"  New  Bi-unswk;k,  &c.,  Railway  Co.  1  Moo.  P.  C.  K  S.  526. 
V.  Muggeridge,  1  Dr.  <ic  Sm.  363,  382. 


360  REMEDIES. 

or  if  there  were  circumstances  in  the  case  wliicli  demanded  fur- 
ther investigation,  for  which  the  vendor  afforded  every  facility  ;* 
or  if  the  representations  which  have  been  made  are  vague  in 
their  terms,  and  merely  amount  to  a  statement  of  value  or 
opinion.^ 

There  cannot  be  specific  performance  if  the  description  of 
the  property  is  of  so  ambiguous  a  nature  that  it  cannot  with, 
certainty  be  known  what  it  was  the  purchaser  imagined  him- 
self he  was  contracting  for.^  A  vendor  of  property  who  makes 
statements  respecting  the  property,  is  bound  to  make  them 
free  from  all  ambiguity ;  and  the  purchaser  is  not  bound  to 
take  upon  himself  the  peril  of  ascertaining  the  true  meaning 
of  the  statements.*  A  definite  representation  upon  a  fact 
affecting  the  value  of  the  subject  of  sale  will  entitle  the  pur- 
chaser, if  the  representation  be  untrue,  to  resist  specific  per- 
formance.^ It  is  the  duty  of  every  vendor  to  state  all  the  cir- 
cumstances connected  with  the  property  he  is  selling,  and  the 
incidents  to  which  it  is  subject,  in  such  a  manner  that  they  can 
be  understood  by  a  person  of  ordinary  intelligence,  and  not 
merely  in  such  a  way  that  only  a  skilled  lawyer  would  be  able 
to  ascertain  the  nature  of  the  title  under  which  he  is  pur- 
chasing.* If  leasehold  property,  which  is  sold  in  separate  lots, 
is  held  under  one  lease,  it  is  incumbent  on  the  vendor  to  state 
the  fact  in  plain  and  distinct  language.' 

If  there  be  unusual  covenants  in  a  lease,  and  the  seller  is 
silent  as  to  their  existence,  he  will  not  be  able  to  enforce  spe- 
cific performance  against  a  purchaser  buying  in  ignorance  of 
the  covenants.^ 

»  Clarke  v.  Mactintosh,  4  Giff.  134.  Drysdale  v.  Mace,  5  T>.  M.  &  G.  101; 

"Scott  V.  Hanson,  1   R.   &  M.  128;  Swaisland  i;.  Dearsley,  29  Beav.  430. 
Jolinson  V.  Smart,  2  Giflf.  151,  supra,  p.  *  Lord  Brooke  v.  Roundtliwaite,  5  Ha, 

82,  85.  304. 

'  Stewart  v.  AUiston,  1  Mer.  26 ;  Ley-  '  Sheard  v.  Venables,  36  L.   J.  Ch. 

land  V.  lllingworth,  2  D.  F.  &  J.  253.  922. 

*  Martin  v.  Cotter,  3  J.  &  L.  496, 507;  '  lb. 

^  Martin  v.  Cotter,  3  J.  &  L.  506. 


REMEDIES.  301 

A  purchaser  cannot,  however,  on  the  application  for  specific 
performance,  take  advantage  of  small  circumstances  of  varia- 
tion in  the  description  of  the  thing  contracted  for.^  Although 
the  description  of  the  property,  the  subject-matter  of  the  con- 
tract, may  be  inaccurate  in  some  particulars,  or  may  be  differ- 
ent in  some  respects  and  in  certain  incidents  from  what  it  was 
represented  to  be,  specific  performance  will  be  decreed  if  the 
property  is  not  difierent  in  substance  from  what  it  was  repre- 
sented to  be,  and  the  misrepresentation  has  been  made  inno- 
cently or  through  mistake,  and  not  wilfully,  upon  the  terms  of 
the  vendor  making  good  his  representation  or  allowing  or  giv- 
ing compensation.^  If,  for  instance,  the  property  be  subject  to 
incumbrances  concealed  from  the  purchaser,  the  seller  may 
have  specific  performance  on  making  good  his  assertion  and 
redeeming  those  charges.  So  also,  if  the  property  is  subject  to 
a  small  rent  not  stated,  or  the  rental  is  somewhat  less  than  it 
was  represented  to  be,^  or  if  the  property  is  smaller  than  it  was 
represented  to  be,*  or  is  not  in  the  state  and  condition  in  which 
it  was  represented  to  be,^  there  may  be  specific  performance  on 
the  terms  of  the  vendor  allowing  a  sufficient  deduction  or 
abatement  from  the  purchase-money.'  The  principle  on  which 
the  court  proceeds  in  such  cases  is,  that  if  the  purchaser  gets 
substantially  that  for  which  he  has  contracted,  a  slight  varia- 
tion or  deficiency  will  not  entitle  him  to  recede  from  his  con- 
tract when  compensation  can  be  made  in  money  for  the  differ- 
ence.'   A  purchaser  cannot,  however,  be  compelled,  upon  the 

'  Poole  V.  Shergold,  1  Cox,  274 ;  Stew-  *  Hill  w.  Buckley,  11  Ves.  395  ;  Winch 

art  V.  Alliston,  1  Mer.  26.  V.Winchester,  1  V.  &  B.  375 ;  Portinan 

=*  Howland  v.  Norris,  1  Cox,  59;  Drewe  v.  Mill,  2  Russ.  570 ;  King  v.  Wilson,  6 

V.  Corp,  9  Ves.  368  ;  Ilillv.  Buckley,  17  Beav.  124 ;  Frost  v.  Brewer,  3  Jur.  165 ; 

Ves.  394  ;  Pulsford  v.  Richards,  17  Beav.  Ayles  v.  Cox,  16  Beav.  23.  Comp.  Price 

87,  96 ;  Price  v.  Mn.caulay,  2  D.  M.  &  v.  North,  2  Y.  <fe  C.  620. 

G.  344.  *  Dyer  v.   Hargrave,    10  Ves.    508; 

^Puisford  V.   Richards,  17  Beav.  87,  Grant  v.   Munt,  "Coop.    173;    Scott  v. 

9Q,per  Lord  Romilly ;  Hughes  i'.  Jones,  Hanson,  1  R.  <fe  M.  131. 

3  D.  F.  &  J.  307.     See  Howland  v.  Nor-  "  See  further.  Dart,  V.  &  P.  694. 

ris,  1  Cox,  61 ;  Pope  v.  Garland,  4  Y.  <fc  ^  Howland  v.  Norris,  1  Cox,  61 ;  Dyer 
C.  394. 

24 


362  REMEDIES. 

principle  of  compensation,  to  take  something  substautiallj  or 
materially  different  from  tliat  for  which  he  contracted.^  There 
can  be  no  specific  performance  if  the  description  be  inaccurate, 
and  the  court  feels  that  it  cannot  measure  the  difference  be- 
tween tliat  which  was  promised  and  the  actual  fact,  so  as  to 
found  a  proper  basis  for  compensation.'^  If,  for  example,  a  man 
has  contracted  for  the  purchase  of  a  freehold,  he  will  not  be 
compelled  to  take  a  leasehold  (though  held  for  a  very  long 
term),'  or  a  copyhold  ;  *  nor  can  a  man  who  has  contracted  for 
a  copyhold  be  compelled  to  take  a  freehold;^  nor  will  a  man 
be  compelled  to  take  property  held  in  a  different  manner  from 
that  which  is  expressed  or  implied  in  the  contract,  as  the 
assignment  of  an  underlease  instead  of  an  original  lease,*  or  of 
a  redeemable  instead  of  an  absolute  interest,' or  of  an  improved 
instead  of  a  ground  rent.^  Kor  can  a  man  who  has  contracted 
for  an  estate  in  possession  be  compelled  to  a  reversion  expect- 
ant on  a  life  estate,^  or  on  a  subsisting  or  a  fortiori  a  rever- 
sionary lease.^°  Nor  will  a  man,  who  has  been  led  by  the  repre- 
sentations of  the  vendor  to  believe  that  the  property,  the 
subject  of  sale,  was  in  the  possession  of  a  tenant  of  the  vendor, 
be  compelled  to  take  a  mere  right  of  entry."  Xor  can  a  man 
be  compelled  to  take  an  estate  where  incumbrances  or  liabili- 
ties exist  which  would  materially  affect  its  enjoyment.-*^  The 
court  will  not  compel  a  man  to  take  compensation  for  that 
which  can  hardly  be  estimated  by  pecuniary  value.^^    Several 


».  Hargrave,  10  Ye3.  50*7 ;  Magennis  v.  ''  Corerley  v.   Burrell,  Sug.  Y,  <&  P. 

Fallon,  2  Moll.  588.  299  ;  Dart,  V.  <fe  P.  689. 

'  Drewe  v.  Corp,  9  Ves.  368 ;  Magen-  ^  Stewart  v.  Alliston,  1  Mer.  26. 

nis  V.  Fallon,  2  Moll.  588.  »  Collier  v.  Jenkins,  You.  398. 

*  Lord  Brooke  V.  Roundthwaite,  5  Ha.  ""  Linelian   t'.  Cotter,  7  Ir.  Eq.  176; 
298;  Cox  v.  Coventon,  31  Beav.  388.  Dart,  V.  &  P.  689. 

"  Drewe  v.  Corp,  9  Yes.  368.  "  Laclilan  v.  Reynolds,  Kay,  54. 

*  Twining  v.  Morice,  2  Bro.  C.  C.  331 ;  "  Dart,  Y.  &  P.  -690,  691. 

Hick   V.  Phillips,  Prec.  Cb.   575.     See  "  Dj-er   r.  Hargrave,    10  Yes,    507; 

Earl    of  Durham   v.   Legard,  34  Beav.  Magennis  v.  Fallon,  2  Moll.  588 ;  Fews- 

612.  ter  v.  Turner.  6  Jur.  144.     See  Knateh- 

*'Ayles  V.  Cox,  16  Beav.  23.  bull  v.  Grueber,  1  Madd.  153. 

*  Madeley  v.  Booth,  2  Deg.  4  S.  718. 


EEMEDIES.  3G3 

of  tlie  cases  to  he  found  in  tlie  books  have  carried  tlie  subject 
of  compensation  farther  than  at  the  present  time  it  would  be 
carried.^ 

"When  upon  the  sale  of  land,  represented  to  consist  of  a 
certain  specified  number  of  acres,  there  proves  to  be  a  deficiency 
in  quantity,  such  deficiency  is  properly  the  subject  for  compen- 
sation, if  the  deficiency  be  not  too  great.  If  the  difi'erence  be 
great,  there  is  no  case  for  compensation.  The  party  prejudiced 
by  the  error  may,  if  he  pleases,  avoid  the  contract ;  but  he 
cannot  have  specific  performance  unless  he  is  willing  to  perform 
the  contract  without  compensation.^ 

Conditions  of  sale  providing  for  compensation  in  cases  of 
error  or  mistake  apply  only  to  accidental  slips,  and  not  to  cases 
where  the  subject-matter  of  the  contract  is  materially  difierent 
in  substance  from  what  it  was  represented  to  be.^ 

A  false  representation  as  to  the  value  of  property  may  be 
enough  to  induce  the  court  to  withhold  specific  performance.* 

Mere  inadequacy  of  consideration  is  not  a  ground  for  resist- 
ing specific  performance;^*  but  if  the  inadequacy  is  very 
great,  specific  performance  will  not  be  decreed.® 

'  Howland  V.  Norris,  1  Cox,  61;  Dyer  Hallett,  L.  R.   2  Ch.  App.  29.    Comp. 

V.  Hai'grave,  10  Ves.  50*7;  Knatchbull  Leslie  i).  Tompson,  9  Ha.  268;  Painter 

V.  Grueber,  1  Madd.  15:3;  Magennis  v.  v.  Newby,  11  Ha.  30. 

Fallon,  2  Moll.  588;  Collier  v.  Jenldns,  *  Buxton  v.  Lister,  3  Atk.  386;  Shir- 

You.  298;  Madeley  v.  Booth,  2  Deg.  «fe  ley  v.  Stratton,  1  Bro.  C.  C.  440;  Wall 

S.  722.  V.  Stubbs,  1  Madd.  81. 

"  Earl  of  Durham  v.  Legard,  34  Beav.  '  ^  Abbott  v.  Sworder,  4  Deg.  &  S.  456 ; 

612.    See  Price  v.  North,  2  Y.  &  C.  620.  Bower  v.  Cooper,  2  Ha.  408;  Borell  v. 

*  Stewart    v.    AUiston,    1   Mer.    26;  Dann,  i6.  440,  ^er  Wigram,  V.  C. ;  Hay- 

Shackleton  v.  Sutcliffe,  1  Deg.  &  S.  620 ;  wood  v.  Cope,  25  Beav.  140. 

Miuk'ley  V.  Bootli,   2   Deg.   &  S.  722  ;  "  Falcke  v.  Gray,  4  Drew.  659. 
Aylcs  V.  Cox,  16  Beav.  23;  Dimmockv. 


I 


*  "Wlien  the  parties  stand  upon  equal  grounds  with  equal  means  of  in- 
formation and  not  in  any  confidential  relation  and  without  any  artifice 
practiced,  inadequacy  is  no  ground  for  refusing  specific  performance.  Sey- 
mour r.  Delaney,  3  Cow.  445;  s.  c.  6  Johns.  Ch.  223  ;  Harrison  v.  Tenn,  17 
Mo.  237;  Shepperd  v.  Bevis,  9  Gill.  32;  Whiteford  v.  McLeod,  2  Bay,  380; 
Knobb  V.  Lindsay.  5  Ohio,  572. 

If  to  any  unfairness  great  inequality  between  price  and  value  be  added, 


364  EEMEDIES. 

It  is  no  defence  to  a  bill  for  specific  performance  by  the 
vendor  tbat  during  the  treaty  he  falsely  assumed  the  character 
of  agent  for  another,  when  in  fact  he  was  dealing  on  his  own 
behalf,  and  that  he  thereby  deceived  the  purchaser  as  to  the 
j)arty  with  whom  he  was  dealing,  provided  the  purchaser  does 
not  show  that  the  deception  induced  him  to  enter  into  the  con- 
tract, or  occasioned  any  loss  or  inconvenience  to  him  other- 
wise.* 

Though  a  written  agreement,  if  there  be  no  fraud  or  mis- 
take, binds  according  to  its  terms,  although  verbally  a  provision 
was  agreed  on  which  has  not  been  inserted  in  the  document, 
either  of  the  parties,  if  sued  in  equity  for  a  specific  perform- 
ance of  the  agreement,  is  entitled  to  ask  the  court  to  remain 
neutral,  unless  the  party  suing  him  will  consent  to  the  per- 
formance of  the  omitted  term.^  As,  for  instance,  when  the 
vendor  refused  to  perform  his  agent's  engagement  that  im- 
provements should  be  executed  on  the  adjoining  property ;  ^  or 
when  the  lessor  of  a  house  verbally  promised  the  lessee  before 
he  executed  the  lease  to  put  the  house  into  complete  repair.* 
But  if  the  vendor  offer  to  perform  the  agreement  with,  if  the 
defendant  so  desire,  the  parol  variation  or  addition,  this  is  suf- 


'Fellowes  v.  Lord  GwydjT,  1  R.  &  v.  Winchester,  1  V.  <fc  B.  378;  Martin?;. 

M.   83.     See  Nelthorpe  v.  Holgate,   1  Pycroft,  2  D.  M.  &  G.  795. 

Coll.  203.  '  Myers  v.  Watson,  1  Sim.  K  S.  523, 

»  Clarke  v.  Grant,  14  Ves.  524 ;  Winch  529. 

•  *  Chappell  V.  Gregory,  34  Beav.  250. 


the  contract  will  not  be  enforced.  Cathcart  v.  Eobinson,  5  Pet.  264  ; 
Burtch  V.  Hogge,  1  Ilarring.  Cli.  31 ;  Gargu  v.  Small,  2  Strobh.  Eq.  72 ; 
Young  V.  Frost,  5  Gill.  287  ;  Trigg  v.  Read,  5  Humph.  529. 

Fluctuations  in  the  value  of  property  caused  by  events  subsequent  to 
the  making  of  the  contract,  are  no  grounds  for  refusing  specific  perfonn- 
ance  if  it  was  fair  at  the  time  it  was  made.  Low  v.  Treadwdl,  3  Fairf. 
441. 

The  subsequent  discovery  of  a  mine  is  not,  in  the  absence  of  fraud,  a 
good  ground  for  refusing  specific  performance.    Bean  v.  Valle,  2  Mo.  126. 


PLEADINa.  365 

ficient,  and  tlie  defendant  cannot  set  up  the  want  of  a  perfect 
written  contract.^  S|)ecific  performance  will  not,  however,  be 
decreed  with  the  parol  agreement  superinduced  upon  it,  unless 
the  party  praying  for  the  specific  performance  has  conducted 
himself  with  perfect  good  faith.^ 

As,  on  the  one  hand,  a  court  of  equity  will  not,  at  the  suit 
of  a  vendor  of  property,  enforce  specific  performance  of  a  con- 
tract for  the  sale  thereof,  if  the  property  is  difierent  in  some 
material  particulars  from  what  it  was  represented  to  be,  unless 
upon  the  terms  of  his  allowing  compensation,  so,  on  the  other 
hand,  specific  performance  of  a  contract  for  the  sale  of  prop- 
erty which  has  been  inaccurately  described  through  iunocent 
mistake,  will  not  be  enforced  at  the  suit  of  the  purchaser,  un- 
less upon  the  terms  of  his  submitting  to  allow  compensation 
to  the  vendor.* 


SECTION  VIII.— PLEADING— PARTIES— PROOF. 

PLEADING. 
In  suits  instituted  for  the  purpose  of  impeaching  transac- 
tions on  the  ground  of  fraud,  it  is  essential  that  the  nature  of 
the  case  should  be  distinctly  and  accurfitely  stated.  A  mere 
general  charge  of  fraud,  without  alleging  specific  facts,  is  not 
sufficient  to  sustain  the  bill.  It  must  be  shown  in  what  the 
fraud  consists,  and  how  it  has  been  eff'ected.  The  fraud  alleged 
must  be  set  forth  specifically  in  particular  and  in  detail,  so  that 
the  person  against  whom  it  is  charged  may  have  the  opportu- 
nity of  knowing  what  he  has  to  meet  and  of  shaping  his  de- 

»  Martin  v.  Pycrott,  2  D.  M.  &  G.  785.  ^  Leslie    v.    Tompson,    9    Ila    268 ; 

»  Walters  V.  Morgan,    a  D.  F.    &   J.      Paiuter  v.  New  by,  11  Ha.  30. 
125. 


366  PLEADING. 

fence  accordingly.^  *  Fraud  is  a  conclusion  of  law ;  and  it  is 
whollv  immaterial  and  insufficient  to  allege  tliat  an  instrument 
lias  been  obtained  by  fraud,  unless  the  things  done  constituting 
the  fraud  are  stated  on  the  face  of  the  bill.'^  If  the  transaction 
sought  to  be  impeached  be  between  solicitor  and  client  or  prin- 
cipal and  agent,  the  bill  should  allege  that  the  defendant  was 
the  solicitor  or  agent  at  the  time  of  the  purchase,  if  such  be 
the  ground  on  which  his  equity  is  based.^  If  the  case  is  not 
60  stated  in  the  j)leadings,  evidence  to  prove  it  cannot  be  ad- 
mitted.^ f  In  imputing  fraud  against  a  man,  the  term  itself 
need  not  be  used :  it  is  sufficient  if  the  facts  stated  amount  to 
a  case  of  fraud.^ 

'  East  India  Co.  v.  Henchman,  1  Ves.  Drew,  2  Macq.  120;  Smith  w.  Kay,  YH. 

Jr.  287  ;  Small  v.  Attwood,  6  CI.  &  Fin.  L.  750 ;  New  Brunswick,  &c.,  Railway 

233  ;  Wilde  v.  Gibson,  1  H.  L.  607;  Sib-  Co.  v.  Conybeare,  9  H.  L.  711. 

son  V.  Edgeworth,  2  Deg.   &  Sm.   73 ;  *  Gilbert  v.  Lewis,  1  D.  J.  <&   S.  38, 

Munday  V.  Kni:;bt,  3  Ha.  497;  Curzon  49,  j»pj- Lord  Westbury. 

V.  Belworthy,  11  Jur.  916  ;  Chadwick  v.  *  Williams  v.  Llewellyn,  2  Y.  «fe  J.  68. 

Chadwick,  18  Jur.  691 ;  Kelly  v.  Rogers,  *  Ih.     See  Montesquieu  v.  Sandys,  18 

1  Jur.  N.  S.  514 ;  Bothomley  v.  Squires,  Ves.  301. 

ib.  694;  Bainbridge  v.  Moss,  3  Jur.  N.  '  Att.-Gen.  v.  Corporation  of  Poole,  4 

S.  58  ;  Ri.bson  v.  Lord  Devon,  4  Jur.  N.  M.  &  C.  28;  Marshall  v.  Slodden,  7  Ha. 

S.  245 ;  Irvine  v.   Kirkpatiick,  7  Bell,  444 ;  Bromley  v.  iSmith,  26  Beav.  671. 
Sc.  Ap.  186;  National  Exchange  Co.  v. 


*  Harding  v.  Handy,  11  Wlieat.  103;  Conway  v.  Ellison,  14  Ark.  360; 
Pendleton  v.  Galloway,  9  Ohio,  178  ;  Spence  v.  Buren,  3  Ala.  231 ;  Bell  v. 
Henderson,  6  How.  (Miss.)  311. 

t  Forey  v.  Clark,  3  Wend.  637  ;  Fisher  v.  Boody,  1  Curt.  203 ;  Thomp- 
son?). Jack«)n,  3  Rand.  504;  Booth  v.  Booth,  3  Litt.  57. 

In  order  to  constitute  the  ground  for  relief  against  a  contract,  fraud 
must  be  distinctly  averred,  otherwise  it  will  not  be  in  issue.  Gouvemeur 
V.  Elmendorf,  5  Johns.  Ch.  79 ;  Fitzpatrick  v.  Beatty,  1  Gilman,  454. 

When  the  bill  sets  up  a  case  of  actual  fraud,  and  makes  that  the  ground 
for  relief,  the  plaintiff  will  not  be  entitled  to  a  decree  by  establishing  some 
of  the  fads  quite  independent  of  fraud,  but  which  might  of  themselves 
create  a  case  under  a  totally  distinct  head  of  equity  from  that  which  would 
be  applicable  to  the  case  of  fraud  originally  stated.  Eyre  v.  Potter,  15 
How.  42. 

A  bill  asking  for  a  rescission  of  a  contract  need  not  aver  that  the 
plaintiff  can  restore  the  prop'jrty.     Veazie  v.  Williams,  8  How.  134. 

An  allegation  of  the  facts  and  circumstances  constituting  fraud  is  suf- 


PLEADING.  367 

A  man  who  seeks  equitable  relief  by  injunction  against 
fraud  is  not  bound  as  tlie  price  of  such  interference  to  bring 
the  whole  matter  into  equity.^  * 

If  a  bill  charges  notice,  it  is  sufficient  to  do  so  generally, 
without  averring  facts  as  evidence  of  the  charge.  It  is  not, 
however,  necessary  to  charge  notice  in  a  bill  to  which  a  plea 
for  valuable  consideration  without  notice  might  be  pleaded.^ 

A  decree  or  order  of  the  court  may  be  impeached  for  fraud 
by  original  bill.' 

There  may  be  a  prayer  in  the  bill  that  certain  transactions 
may  be  declared  fraudulent,  and  also  an  alternative  prayer  for 
relief,  upon  the  supposition  of  such  transactions  not  being  set 
aside  on  the  ground  of  fraud.* 

It  is  not  necessary  that  there  should  be  an  express  prayer 
in  the  bill  that  a  transaction  should  be  set  aside  for  fraud.  A 
transaction  will  be  set  aside  for  fraud  under  the  prayer  for  gen- 
eral relief.^ 

'  Stewai-t  V.  Great  Western  Railway         *  Bowen  v.  Evans,  2  H,  L.  280.     Sea 
Co.,  2  D.  J.  &  S.  319.  Bennett  v.  Vade,   9  Mod.   312;  Cruik- 

*  Hughes  V.  Garner,  2  Y.  &  C.  328.  shank  v.  M'Vicar,  8  Beav.  100. 

-  Biuoke  V.  Lord  Mostyn,  2  D.  J.  &          °  Williams  v.  Smith,  7  L.  J. Ch.  129. 
S.  373.  

ficient  without  charging  fraud  by  name.  Kennedy  v.  Kennedy,  2  Ala.  571 ; 
Skiine  v.  Simmons,  11  Geo.  401 ;  Faraam  v.  Brooks,  9  Pick.  213. 

A  bill  alleging  fraud  cannot  be  supported  by  proof  of  mistake,  but  the 
facts  may  be  so  alleged  that  relief  may  be  granted  on  the  latter  ground. 
Stebbins  ®,  Eddy,  4  Mason,  414  ;  Smith  v.  Babcock,  2  Wood  &  Min.  246; 
White  c.  Denman,  1  Ohio  St.  R.  110;  Williams  v.  Sturdevant,  27  Ala. 
598. 

When  a  party  seeks  to  avoid  the  statute  of  limitations  on  the  ground 
of  fraud,  the  bill  must  be  specific  in  stating  the  facts  which  constitute  the 
fraud  and  the  time  when  it  was  discovered.  Moore  v.  Green,  19  How.  69; 
Sterns  «.  Page,  7  How.  819;  Beaubien  v.  Beaubien,  23  How.  190;  Badger 
«.  Badger,  2  Wall.  87 ;  Williams  v.  First  Presbyterian  Society',  1  Ohio  St. 
R.  478. 

*  A  party  who  has  bought  land  and  been  let  into  possession,  and  who 
seeks  to  enjoin  a  suit  for  the  purchase  money  on  the  ground  of  fraud 
or  failure  of  title,  must  pray  for  a  rescission  of  the  contract.  Markham  ». 
Todd,  2  J.  J.  Marsh.  307 ;  Williamson  v.  Raney,  1  Freeman,  113. 


368  PLEADING. 

If  a  case  of  fraud  is  alleged  in  respect  of  the  formation  of 
a  company,  it  must  be  set  up  by  bill,  and  not  by  proceedings 
under  a  winding-up  order.^ 

A  defendant  is  not  justified  in  omitting  to  demur  to  a  bill 
on  the  ground  that  it  contains  charges  of  fraud  against  him.^  * 

Assignees  of  a  bankrupt  cannot  at  the  hearing  insist  on  a 
case  of  fraudulent  preference,  unless  they  have  raised  it  in  the 
pleadings.^ 

When  the  same  person  has  been  induced  to  part  with  his 
property  at  an  undervalue  at  two  different  times,  through  the 
misrepresentations  of  two  diiferent  agents  of  the  same  princi- 
pal, one  bill  may  be  brought  to  set  aside  botli  transactions,  al- 
though in  themselves  wholly  distinct,  and  the  same  will  not  be 
demurrable  for  multifariousness/ 

If  a  case   of  fraud  be  presented,  a  bill  is  not  demurrable 

>  Leifchild's  Tase,  L.  R.  1  Eq.  231.  '  Holderness  v.  Rankin,  2  D.  F.  <fe  J. 

»  Nesbitt  V.  Berridge,  11   W .  R.  446  ;  258. 

1  N.  R.    345.      Comp.    Botliomley    v.  *  Walsham  v.  Stainton,  1  D.  J.  <fe  S. 

Squires,  1  Jur.  N.  S.  694,  6Y8. 


*  An  allegation  of  fraud  in  a  bill  must  be  answered,  and  a  general  de- 
murrer cannot  be  allowed.  The  allegtitiou  of  fraud  must  be  denied  by 
answer,  whatever  defence  may  be  adopted  as  to  other  parts  of  the 
bill.  Stovals  ®.  Northern  Bank  of  Mississippi,  5  Smed.  &  Mar.  17; 
Ross  V.  Vestncr,  1  Freeman's  Ch.  5b7 ;  Niles  v.  Anderson,  5  How.  (Miss.) 

365. 

K  the  defendant  pleads  to  a  bill  containing  an  allegation  of  fraud,  he 
must  still  deny  the  fraud  by  answer  as  well  as  by  averment  in  the  plea. 
Niles  V.  Anderson,  5  How.  (Miss.)  3C5 ;  Crawley  v.  Timberluke,  1  Ired. 

346. 

A  plea  at  law  setting  forth  the  facts  without  averring  fraud,  is  insuffi- 
cient.    Clark  V.  Partridge,  2  Burr.  13. 

A  plea  at  law  containing  a  general  allegation  of  fraud,  without  setting 
forth  the  facts,  is  insuflicient.  Giles  v.  Williams,  3  Ala.  31G ;  Clay  v.  Dennis, 
3  Ala.  375  ;  Hynson  v.  Dunn,  5  Pike,  395  ;  Pemberton  v.  Staples,  6  Mo.  59; 
contra,  Hoitt  «.  Holcomb,  23  N.  H.  535. 

When  the  facts  set  forth  in  a  plea  at  law  do  not  constitute  fraud,  the 
intention  to  defraud  must  be  averred.  Fraud  consists  in  the  intention. 
Moss  V.  Riddle,  5  Cranch,  351. 


PLEADING.  369 

merely  as  being  brouglit  for  tlie  recovery  of  money .^  lu  Colt 
V.  "Woollaston  ^  it  was  held  that  persons,  wlio  bad  been  induced 
by  misrepresentation  on  the  part  of  the  promoters  of  a  public 
company  to  subscribe  for  shares,  may  obtain  their  money  back 
by  a  bill  in  equity,  although  an  action  at  law  might  have  been 
brought  for  the  same  jDurpose  with  success.  This  doctrine  has 
ever  since  been  recognized  as  coi'rect,  and  it  has  been  fre- 
quently acted  on.^  So  also  a  bill  averring  a  combination  of 
several  defendants,  against  some  of  whom  the  plaintiff  may 
have  a  direct  remedy  at  law,  while  against  others  he  may  have 
no  remedy  at  law,  or  no  remedy  except  by  as  many  actions  of 
deceit  as  there  are  parties  defendants  to  the  suit,  is  mamtain- 
able  ;  *  though  a  bill  of  the  same  sort  against  a  single  individ- 
ual would  be  demurrable,'  except,  perhaps,  in  cases  where  the 
amount  of  damage  was  ascertained,  or  capable  of  being  easily 
ascertained.' 

The  defence  of  purchase  for  value  without  notice  cannot  be 
admitted,  unless  it  is  pleaded.'  * 

"When  a  party  relies  upon  the  plea,  he  must,  in  his  plea, 
aver  expressly  that  the  person  who  conveyed  was  seised,  or 
pretended  to  be  seised,  when  he  executed  the  conveyance,  and 
that  he  was  in  possession,  if  the  conveyance  purported  an  im- 
mediate transfer  of  the  possession  at  the  time  when  he  executed 
the  deed.*  It  must  aver  the  consideration,^  and  actual  pay- 
ment of  it.     A  consideration  secured  to  be  paid  is  not  suffi- 

'  Ingram  v.  Thorpe,  7  Ha.  67 ;  Barry  '  Darry  v.  Crosskey,  2  J.  <fe  H.  30. 

V.  Crosskey,  15.  &  H.  1.  '  Ih. 

"^  2  P.  Wms.  154.  »  liii;Tnm  v.  Tliorpe,  Y  ITa.  07. 

'  Greon  v.  Barrett,  1  Sim.  45;  Blair  '  Lyne  v.  Lyne,  27  L.  T.  208;  Phil- 
V.  Ai^ar,  2  Sim.  289;  Stainbank  )'.  ij^ps  y.  Philipps,  31  L.  J.  Ch.  321. 
Fcriiley,  9  Sim.  550  ;  Cridland  v.  De  "  Jackson  v.  Rowe,  4  Ru.-s.  514,  Mitf. 
Mauley,  1  Deg.  &  Sm.  459;  Beeching  Plead.  320.  See  as  to  case  where  pur- 
V.  Llo^'d,  3  Drew.  227 ;  Henderson  v.  chase  is  of  a  reversion,  IIu  'hes  v, 
Lacon,  L.  R.  5  Eq.  202;  but  sec  Garth,  Ambl.  421. 
Thompson  v.  Barclay,  9  L.  J.  Ch.  219,  "  Millard's  Case,  2  Freem.  43;  War- 
per Lord  Brougham.  staff  v.  Read,  2  Ch.  Ca.  156. 


*  Snelgrove  v.  Snelgrove,  4  Dessau,  274 ;  High  v.  Batte,  10  Yerg.  335. 


370  PLEADING. 

cient.*  Tlie  plea  must  also  deny  notice  of  the  plaintiff's  title 
or  claim  previous  to  tlie  execution  of  the  deeds  and  payment 
of  tlie  consideration,^  *  and  the  notice  so  denied  must  be  notice 
of  the  existence  of  the  plaintiff's  title,  and  not  merely  notice  of 
the  existence  of  a  person  who  could  claim  under  that  title.^ 

^Notice  must  be  denied  whether  it  be  charged  in  the  bill  or 
not.*f  ISTotice  must  be  denied  by  way  of  averment  in  the  plea, 
otherwise  the  fact  of  notice  will  not  be  in  issue/  But  it  is 
sufficient  to  deny  notice  generally  ;  for  it  is  not  the  office  of  a 
plea  to  deny  particular  facts,  unless  they  are  specially  charged 
as  evidence  of  notice.  If,  however,  particular  facts  are  speci- 
ally charged  as  evidence  of  notice,  the  plea  must  be  accom- 
panied by  an  answer  denying  the  facts  as  specially  and  parti- 
cularl}^  as  they  are  charged  in  the  bill,  so  that  the  plaintiff  may 
be  at  liberty  to  except  to  its  sufficiency.^ 


*Hardingham  v.    Nicholls,   3    Atk.  borough,  2  P.  "Wms.  491;  Hughes  v. 

304;  Molonv  v.  Kernan,  2  Dr.  &  War.  Garner,  2  Y.  <fe  C.  328. 

31,  Mitf.  Plead.  320.  ^  Harris  v.  Ingledew,  3  P.  Wms.  94, 

=  Moore  v.   Mayhow,  1  Ch.   Ca.   34;  Mitf.  Plead,  o  21. 

Tourville  I'.  Naisli,  3  P.  Wms.  307,  Mitf.  "Pennington  v.  Beechey,  2   Sim.  <fe 

Plead.  320.  St.   282;   Ovey  v.    Leighton,   ib.    234; 

^Kelsall    V.   Bennett,    1    Atk.    522,  Hardman  v.  Ellames,  5  Sim.  650 ;  2  M. 

Mitf.  Plead.  321.  &.  K.  732  ;  Kennedy  v.  Green,  6  Sim.  1 ; 

*  Aston   V.    Curzon,  3  P.  Wms.   244  Lord  Portarlington  v.   Soulby,  7  Sim, 

(n.)    f. ;    Brace    v.    Duchess   of  Marl-  23;  Gordon  «;.  Shaw,  14  Sim.  393. 


*  Boone  v.  Chiles,  10  Pet.  177 ;  Galatian  v.  Erwin,  1  Hopk.  48 ;  Brinker- 
hoflf  t.  Lansing,  4  Johns,  Ch.  65 ;  Harris  v.  Fly,  7  Paige,  421  ;  Nantz  y.  Mc- 
Pherson,  7  Men.  597  ;  Jenkins  «.  Bodley,  1  Snied.  &  Mar.  Ch.  338. 

t  Manhattan  Co.  v.  Evertson,  6  Paige,  457 ;  WoodruflF  v.  Cook,  2  Edw. 
Ch.  259;  Frost  v.  Beekman,  1  Johns.  Ch.  288  ;  Leftwich^.  Omc,  1  Freeman 
Ch.  207 ;  Wilson  r.  Hillyer,  Saxton,  63 ;  Moore  v.  Clay,  7  Ala.  742  ;  Heri-ing 
«.  Winans,  1  Smed.  &  Mar.  Ch.  466  ;  Baynard  v.  Norris,  5  Gill.  468. 

The  defence  may  be  raised  by  answer  as  well  as  by  plea.  Donnell  v. 
King,  7  Leigh,  393 ;  Baynard  v.  Norris,  5  Gill.  468. 

The  fact  of  notice,  and  the  knowledge  of  every  circumstance  from 
■which  notice  can  be  inferred  must  be  denied.  Murray  «.  Ballou,  1  Johns. 
Ch.  566  ;  Leftwich  v.  Ome,  1  Freem.  Ch.  207 ;  "Wilson  t.  Hillyer,  Saxton, 
63. 

"Where  a  purchaser  with  notice  relies  ujpon  the  ignorance  of  a  prior 


PARTIES.  371 

If  a  purcliaser  without  notice  neglects  to  protect  himself  by 
plea,  he  may  defend  himself  by  answer,^  hut  if  he  submits  to 
answer,  he  must  answer  fully,  although  he  might  by  demurrer 
or  plea  have  protected  himself.^  A  defendant,  who  puts  in 
answer  but  does  not  set  up  the  defence  of  purchase  for  value 
without  notice,  cannot  afterward   insist  on  that  defence.' 

PARTIES. 

The  heir  at  law  of  a  person  seised  in  fee,  may  maintain  a 
suit  to  set  aside  a  transaction  into  which  his  ancestor  has  been 
induced;  by  fraud,  to  enter.*  *  He  is  not  precluded  from  suing 
to  set  aside  the  sale,  by  the  circumstance  of  the  party  defrauded 
having,  by  will,  bequeathed  to  a  third  party  the  balance  of  the 
purchase  money  remaining  due  at  his  death. ^  If,  however,  the 
bill  alleges  that  the  purchase  money  is  unpaid,  the  personal 
representatives  must  be  made  parties,  as  being  interested  in 
maintaining  the  validity  of  the  contract.® 

The  executor  of  a  party  defrauded  may  file  a  bill  to  have  a 
transaction  set  aside.'  So,  also,  may  a  devisee  file  a  bill  to  set 
aside  a  transaction  which  lias  been  fraudulently  obtained  from 
his  testator.     The  heir  at  law  is  not  a  necessary  party .^ 

» Att.-Gen.  t>.  Wilkins,  17  Beav.  285,       v.   Malpas,  31   Beav.  88,   31  L.  J.  Ch. 
291.  696 ;  Longmate  v.  Ledger,  2  Giff.  157. 

*  Lancaster  v.  Evors,  1  Ph.  352.  "  Bellamy  v.  Sabine,  2  Ph.  425. 

«  Philipps  V.  Philipps,  31  L.  J.  Ch.  *  Wilkinson  v.  Fowkes,  9  Ua.  193. 

321.  '  Walsliam  v.  Staiuton,  1  D.  J.  <fe  S. 

*  Bellamy  v.  Sabine,  2  Ph.  425  ;  Hoi-        678. 

man    v.    Loynes,  4  D.  M.   &  G.   270 ;  "  Uppington  v.  Bullen,  2  Dr.  &  War. 

Gresley  v.  Mousley,  4  D.  <fe  J.  78 ;  Clark        184 ;   llarrison  v.  Guest,  6  D.  M.  &  G. 

424. 


purchaser,  fhrongh  whom  the  title  has  passed,  he  must  aver  want  of 
notice  in  his  grantor,  and  such  denial  may  be  made  on  information  and  lie- 
lief.  Griffith  r.  Griffith,  9  Paige,  315;  Gallatian  v.  Cunningham,  8  Cow. 
3G1  ;  Woodriiflf  r.  Cook,  2Edw.  Ch.  259  ;  Galatian  v.  Erwin,  1  Ilopk.  48. 

*  A  fraud  is  an  individual  and  personal  thing,  and  does  not  form  a 
claim  on  behalf  of  a  stranger  to  the  transaction  not  claiming  under  the 
party  defrauded.  Comstock  v.  Ames,  3  Keycs,  357;  Beesley  v.  Hamilton, 
5  lib  88. 


372  PARTIES. 

So,  also,  may  a  remainder  man,  under  a  settlement,  file  a 
bill  to  set  aside  a  transaction,  into  wliicli  Ms  predecessor  in 
title,  under  the  settlement,  lias  been  induced  by  fraud  to 
enter .^  If  fraud  lias  been  practiced  on  a  tenant  in  tail,  andbas 
been  carried  into  eifect  by  barring  the  entail,  and  lie  dies 
without  issue,  and  without  confirming  the  transaction,  the  next 
remainder  man  may  file  a  bill  to  set  it  aside  ;  but  not,  if  there 
were  an  independent  intention  to  bar  the  entail,  and  the  fraud 
applied  only  to  some  part  of  the  transaction,  distinct  from  that 

object.* 

If  several  persons  have  been  induced,  by  false  and  fraudu- 
lent representations,  to  take  shares  in,  or  subscribe  to,  an 
undertaking,  each  one  may  institute  a  suit  on  his  own  behalf 
for  a  rescission  of  the  contract,  or  for  a  return  of  the  moneys 
which  he  has  advanced.  It  is  not  necessary  that  the  other 
persons  defrauded  should  be  parties  to  the  suit,  or  be  repre- 
sented therein.^  In  Macbride  v.  Lindsay,*  where  a  biU  was 
filed  by  a  man,  who  alleged  that  he  had  been  induced  by  the 
fraudulent  representations  of  the  directors  of  a  company  to  be- 
come a  member  of  the  company,  praying,  amongst  other  things, 
a  return  of  the  money,  a  demurrer  was  allowed  on  the  ground 
that  the  fraud  of  which  the  plaintiff  complained  gave  him  no 
rio-ht  to  rescind  his  contract,  except  a  right  common  to  himself, 
and  others  who  were  not  represented  in  the  suit.  So,  also,  it 
was  considered  in  Beeching  v.  Lloyd,^  that  the  subscribers  to 
a  company  have  such  a  community  of  interest  in  the  funds 
subscribed,  as  to  entitle  them  to  sue  jointly  for  their  return.* 
But  these  cases  cannot  be  reconciled  with  some  very  recent 

'Ward   ).'.   Hartpole,   3  Blig-li,  490;  Kisch,  L,  R.  2  App.  Ca.  112;  Smith's 

BrTcl"-i'S  V  Braiifil,  12  Sim.  369.  Case,  lie  lieese  Silver  Mining  Co.,  L. 

'i  Bell.iniv  V.  Sabine,  2  Pli.  425.     See  R.  2  Ch.  App.  604. 

Tarlet-.n  v."  Lidddl,  17  Q  B.  390.  *  9  Ha.  574. 

»  Coll  V.  Woollaston,  2  P.  Wm^.  154;  '3  Drew.  242. 

Green  v.  I'airett,  1  Sim.  45  ;  Cridland  *  See  Williams  v.  Smith,  7  L.  J.  Ch. 

V.  De  Mauley,  1  Deg.  &  Sm.  459;  Cen-  129. 
tral  Railway  Company  of  Venezuela  v 


PARTIES.  373 

cases,  in  wliich  it  has  been  held  that  a  man,  who  has  been  in- 
duced by  false  representations  in  the  prospectus  of  a  company 
to  take  shares  in  the  company,  may  maintain  a  suit  on  his  own 
behalf  against  the  company  and  its  directors,  for  a  rescission 
of  his  contract  to  take  shares.'^  The  law,  therefore,  upon  this 
subject,  must  be  considered  as  still  open  to  discussion,  but  the 
better  opinion  would  seem  to  be,  that  each  person,  who  has 
been  defrauded,  has  a  distinct  and  separate  ground  of  relief, 
and  that,  therefore,  a  suit  by  one  of  them  on  behalf  of  himself 
and  the  others,  is  irregular,  and  cannot  be  maintained.^ 

A  suit  may,  however,  be  properly  instituted  by  one  or 
some  of  a  number  of  partners,  on  behalf  of  himself,  or  them- 
selves, and  all  othei's  whose  interest  is  identical  with  his  or 
their  own,  when  the  object  of  the  suit  is  to  make  an  officer  of 
the  company  account  for  a  secret  benefit  or  advantage  ob- 
tained by  him,  in  breach  of  the  good  faith  owing  to  those 
whose  affairs  he  conducts ;  ^  or  to  rescind  a  contract  into  which 
the  partnership  has  been  induced  to  enter,  by  Mse  and  fraud- 
ulent representations.* 

The  right  to  bring  an  action  of  deceit  at  law,  or  to  have 
relief  in  equity,  on  the  ground  of  misrepresentation,  is  not 
confined  to  the  person  to  whom  the  false  representation  has 
been  made,  but  extends  to  third  persons,  provided  it  appear 
that  the  representation  was  made  with  the  intent  that  it 
should  be  acted  on  by  such  third  persons,  or  by  the  class  of 
persons  to  whom  they  may  be  supposed  to  belong,  in  the 
manner  that  occasions  the  loss  or  injury.' 

'  Central  Railway  Co.  of  Venezuela  Lund  v.  Blanshard,  4  Ha.  9 ;  Beck  v. 

V.  Kisch,  L.  R.  2  App.  Ca.  112;  Smith's  Kantorowicz,  3  K.  <fe  J.  230;   Attwood 

Case,  Re  Reese  River  Silver   Mining  v.  Merry  weather,  37  L.  J.  Ch.  35. 

Co.  L.  R.  2  Ch.  App.  004.  ^  See' Small  v.  Attwood,  You.  407. 

"Jones  V.  Garcia  del  Rio,  T.  <fe  K.  *  Clifford  v.   Brooke,    13  Ves.    132 

297;    Crosskey   v.   Bank   of  Wales,   4  Langridge  v.  Levy,   2  M.  &  W.  519 

Giflf.  314.  Longmeid  v.  Holliday,   6  Exch.   761 

*  Hichens  v.  Congreve,  4  Russ.  562;  Bedford  v.   Bagsliaw,  4  H.   <fe  N.  538 

Taylor  v.  Salmon,  4  M.  <fe  C.  134;  Ben-  Blakemore  v.  Bristol  and  Exeter  Rail' 

son  V.  Heathorn,  1  Y,  «fe  C.  C.  C.  326;  way  Co.  8  E.  «fe  B.  1035;  National  Ex- 


374  PAETIES. 

A  party,  partially  interested  in  an  estate,  may  maintain  a 
suit  to  set  aside  a  conveyance  of  such  interest  fraudulently  ob- 
tained from  him,  without  making  the  otiier  parties  interested 
in  the  estate  parties.'^ 

It  is  a  general  rule  that  a  court  of  justice  will  not  interpose 
actively  in  favor  of  a  man  who  is  particej)s  criminis  in  an 
illegal  or  fraudulent  transaction.^*  The  court  will  take  the 
objection  as  to  the  illegality  of  the  transaction,  even  although 
the  defendant  himself  does  not.^  Where  both  parties  are 
equally  offenders  against  the  law,  the  maxim  potior  est  con- 
ditio jposside7itis,  prevails,  not  because  the  defendant  is  more 
favored,  where  both  are  equally  criminal,  but  because  the 
plaintiff  is  not  permitted  to  approach  the  altar  of  justice  with 
unclean  hands.*  f  If,  accordingly,  a  deed  has  been  executed, 
or  a  conveyance  made,  to  enable  a  party  to  contravene  the 
provisions  of  an  act  of  Parliament,  no  suit  in  equity  will  lie  to 
set  aside  the  deed  or  recover  the  estate.     The  party  executing 


change  Co.  v.  Drew,  2  Macq.  103;  man  v.  Ramsey,  San.  <fe  Sc.  459 ;  Hamil- 
Scott  V.  Dixon,  29  L.  J.  Excli.  63  n.;  ton  v.  Ball,  2  Ir.  Eq.  191,  194;  M'Kin- 
Bagshaw  v.  S^eymour,  18  C.  B.  903;  nell  v.  Robinson,  3  M.  A  W.  439;  Bar- 
Davidson  V.  TuUoch,  3  Macq.  783 ;  nard  v.  Sutton,  '7  Jur.  685,  per  Lord 
Barry  v.  Crosskey,  2  J.  &  H.  1.  Lyndluirst. 

'  Henley  v.  Stone,  3  Beav.  355.  '^  Hamilton  v.  Ball,  2lr.  Eq.  191, 194. 

^  Cecil  V.  Butcher,  2  J.  <fe  W.  572  ;  *  Nellis  v.  Clark,  4  Hill.  (Amer.),  426. 
Doe  V.  Roberts,  2  B.  «fe  Aid.  369 ;  Bate- 


*  Creath  ®.  Sims,  5  How.  193  ;  Nellis  t\  Clarke,  20  Wend.  24 ;  Boyd  v. 
Barclay,  1  Ala.  34 ;  Warburton  v.  Aikeu,  1  M'Leao,  460 ;  Wheeler  v.  Sage, 
1  Wall.  518;  Wyatt  v.  Ayers,  2  Port.  157;  Randall  ®.  Howard,  2  Blackf. 
585;  Haunay  v.  Eve,  3  Crancli.  242;  Bartle  «.  Natt,  4  Pet.  184;  Sims  «. 
Steele,  5  Munf.  29 ;  Steele  v.  Worthington,  2  Ohio,  182. 

Although  the  parties  have  been  engaged  in  business,  either  malum  in 
ae,  or  merely  prohibited  by  law,  yet  if  the  cause  of  action  is  unconnected 
with  the  illegal  act,  and  is  founded  upon  a  distinct  and  collateral  consid- 
eration, it  will  not  be  affected  by  their  former  conduct.  Phalen  v.  Clark, 
19  Ct.  421. 

t  Bolt  V.  Rogers,  3  Paige,  154;  Furris  v.  Dunham,  5  Mon.  397:  Lucas  v. 
Mitchell,  2  A.  K.  Marsh.  244 ;  M'Clure  v.  Puicell,  3  A.  K.  Marsli.  61 ;  Cun- 
ningham V.  Shields,  4  Hey.  44. 


PARTIES.  375 

it  cannot  be  heard  to  allege  his  own  fraudulent  purpose.  He 
is  estopped  from  confining  the  operation  of  his  deed  within 
the  limits  of  his  intended  fraud.'^  In  a  case  where  a  man,  in 
order  to  give  his  brother  a  colorable  qualification  to  kill  game, 
conveyed  some  land  to  him,  it  was  held  that  his  widow  could 
not  avoid  the  conveyance  in  an  action  of  ejectment  against  her 
by  the  brother.^  So,  also,  if  a  man,  with  a  view  of  defeating 
his  creditors,  makes  a  conveyance  of  his  real  and  personal 
estate  to  another,  no  suit  is,  in  general,  maintainable  by  him 
against  that  other  for  the  recovery  of  the  property.^  * 

A  distinction  has  been  taken  between  cases  where  a  deed 
executed,  or  a  conveyance  made,  for  an  illegal  purpose,  has 
performed  its  office,  and  been  accompanied  by  the  completion 
of  the  purpose,  and  cases  where  the  deed  or  conveyance  has 
not  been  used  for  the  purpose  for  which  it  was  executed.     In 


'  Curtis  V,  Perry,  6  Ves.  141;  Brack-  "Doe  v.  Roberts,  2  B.  &  Aid.  369. 

enbury  v.  Brackeiibury,  2  J.  cfe  W.  391;  See  Philpotts  v.  riiillpotts,  10  C.  B.  85. 

Cecil  V.   Butcher,   ib.  572;   Groves   v.  ^  Ncllis  c.  Clark,  4  Hill  (Amer.)426; 

Grooves,  3  Y.  <fe  J.  163;  Comp.  Childers  Ford  v.  Harrington,  2  iSmitli  (Aiuer.), 

?;.  Childers,  1  D.  <fc  J.  482;  Davies  i;.  285;  Comp.    Barnard  v.  Sutton,  7  Jur. 

Otty,  35  Beav.  208.  686. 


*  Fitzgerald  v.  Forristal,  48  111.  328 ;  White  v.  Wbite,  5  J.  J.  Marsh. 
444 ;  Bryaut  v.  Mansfield,  22  Me.  3G0 ;  Dorsy  v.  Sinithson,  6  H.  &  J.  Gl ; 
Osborne  v.  Moss,  7  Johns.  161 ;  Coltrains  v.  Causey,  3  Ired.  248 ;  btickney 
«.  Bosnian,  2  Barr,  67 ;  James  v.  Bird,  8  Leigh.  510;  "Warren  v.  Hall,  6 
Dana,  450 ;  Buchler  v.  Gloninger,  3  Watts,  226. 

A  suit  may  be  maintained  upon  notes  given  as  consideration  for  a 
fraudulent  conveyance.     Stanton  v.  Green,  34  Miss.  576. 

Ejectment  may  be  maintained  by  the  fraudulent  grantee.  Stark  v. 
Littlei^uge,  4  Rand.  368. 

A  note  secured  by  a  fraudulent  mortgage  cannot  be  enforced  against 
the  maker.     Walker  v.  McConnico,  10  Ycrg.  338. 

No  suit  in  equity  is  maintainable  by  the  grantee  against  the  grantor. 
Mason  v.  Baker,  1  A.  K.  Marsh,  208. 

Equity  will  not  lend  its  aid  to  enforce  a  mortgage  given  for  a  fictitious 
debt,  in  order  to  defraud  creditors.     Jones  v.  Comer,  5  Leigh.  350, 

Although  the  mortgage  is  void,  the  original  debt  may  be  recovered. 
Haven  v.  Low,  3  N.  H.  13. 


376  PARTIES. 

Platamone  v.  Staple,*  the  Yice-Chancellor  appears  to  liave  con- 
sidered, that  the  circumstance  of  the  purpose  for  which  the 
deed  was  made  not  having  been  accomplished,  made  a  material 
distinction.^  But  the  distinction  does  not  seem  sound.  If  a 
grantor,  so  far  as  he  can,  completes  the  transaction  for  an 
illegal  purpose,  and  leaves  it  in  the  power  of  the  grantee  to 
make  at  his  pleasure  the  illegal  use  of  the  instrument  origi- 
nally intended,  he  merits  the  consequences  attached  to  the 
illegality  of  his  act.^  It  is  difficult  to  see  upon  what  principle 
it  can  be  contended  that  a  man,  who  intends  to  commit  a 
fraud,  shall  not  have  relief  if  he  succeed  in  his  attempt,  but 
shall  be  relieved  if  he  fails  or  hesitates  to  proceed,  because  he 
fears  a  failure.  His  intention  is  as  fraudulent  in  the  one  case 
as  in  the  other.* 

A  distinction  has  also  been  taken  between  cases  where  the 
conveyance  has  been  made  with  the  privity  of,  or  the  deed  has 
been  delivered  to,  the  grantee,  and  cases  where  the  convey- 
ance has  not  been  communicated  to  the  grantee,  nor  the  deed 
parted  with  by  the  grantor.^  But  there  is  a  preponderance  of 
authority  in  support  of  the  proposition  that,  although  a  volun- 
tary deed  is  made  without  the  knowledge  of  the  grantee,  and 
has  been  kept  in  the  hands  of  the  grantor,  a  court  of  equity 
will  not  relieve  against  it.^  In  Brackenbury  v.  Brackenbury,' 
the  grantor  had  never  parted  with  the  possession  of  the  deed, 
nor  had  it  been  used  for  the  fraudulent  purpc^e  with  a  view  to 
which  it  was  executed.  After  the  death  of  the  grantor,  the 
grantee  obtained  possession  by  deceit,  and  under  a  promise  to 
return  it  immediately,  yet  the  court  refused  to  relieve.     Inas- 


*  Coop.  251.  *  Bateman  v.   Ramsay,   San.   &  Sc. 
"  See  Barnard  v.  Sutton,  1  Jur.  685.  478. 

•  Cecil  V.  Butcher,  2  J.  &  W.  578 ;  "  Ward  v.  Lant,  Free.  Ch.  182;  Birch 
Doe  «.  Roberts,  2  B.  <fc  Aid.  369 ;  Rob-  v.  Blagrave,  Arab.  264;  Groves  v 
erta  v.  Roberts,  Dan.  143;  Groves  v.  Groves,  3  Y.  &  J.  163. 

Groves,  3  Y.  &  J.  163.     See  Bracken-  "  CecU  v.  Butcher,  2  J.  &  W.  578. 

bury  V.  Brackenbury,  2  J.  <fe  W.  391.  '  lb.  391. 


PAETIES.  377 

much  as  it  is  -vrell  established  law  that  a  man  who  executes  a 
voluntary  settlement  passes  the  estate  out  of  himself,  though 
he  retains  the  deed  in  his  own  possession,*  it  is  impossible 
to  contend  that  the  distinction  attempted  to  be  made  is  a 
sound  one. 

The  rule  that  a  court  of  justice  will  not  actively  interpose 
m  favor  of  a  man  who  is  particcps  crimhiis  in  an  illegal  or 
fraudulent  transaction,  like  most  other  general  rules,  admits  of 
exceptions.  An  exception  to  the  rule  takes  place  where  the 
party  seeking  relief,  although  particeps  criminis,  is  not  in 
pari  delicto  with  his  associate  in  the  matter.  There  may  be, 
and  often  ,are,  very  different  degrees  of  guilt  of  parties  who 
concur  in  an  illegal  act.  One  party  may  act  under  circum- 
stances of  oppression,  imposition,  undue  influence,  of  great 
inequality  of  age  or  condition,  so  that  his  guilt  may  be  far  less 
in  degree  than  that  of  the  other  party .^  * 

Other  cases  which  form  an  exception  to  the  general  rule 
are  cases  where  the  act  or  deed  in  which  the  parties  concur  is 
against  the  principles  of  morality  or  public  policy.  In  such 
cases  there  may  be  on  the  part  of  the  court  itself  a  necessity 
of  supporting  the  public  interest  or  policy,  however  reprehen- 

'  Roberts  v.  Williams,  4  lis.  130.  borne  v.  Williams,  18  Ves.  SYO;  Palmer 

"  Siiiitli  V.  Bromley,  2  Doiio-.  696  n. ;  v.  Wheeler,  2  Ba.  <fe  Be.  31 ;  Reynell  «;, 

Bosanqiiet  v.  Dashwood,  Ca.  t.  Talb.  41 ;  ISprye,  1  D.  M.  <fe  G.  (,18,  679. 

Browning  v.  Morris,  Cowp.   'ZOO;    Os- 


*Freelove  «,  Cole,  41  Barb.  318;  Prewitt  v.  Copwood,  30  Miss.  369; 
Austin  ^'.  Winston,  1  Hen.  &  M.  33;  Dismukes  v.  Terry,  Walk.  197; 
Dertley  v.  Murphy,  3  A.  K.  Marsh,  472 ;  Long  v.  Long,  9  Md.  348. 

The  rule  does  not  apply  to  a  case  where  the  defendant  fii'st  conceived 
the  fraud  for  his  own  benefit,  and,  either  by  his  artifice  or  influence, 
induced  the  complainant  to  concur.     Cook  v.  Collyer,  3  B.  Mon.  71. 

If  a  person  is  capax  doK,  or  rather,  cnpax  fraudis,  the  rule  applies, 
although  the  other  party  is  greatly  superior  in  intellect  and  of  more 
prudent  habits,  for,  as  there  is  no  rule  by  which  a  court  of  equity  can 
measure  the  grades  of  intellect  of  different  men  possessed  of  legal  capacity, 
it  must  hold  them  to  be  of  equal  capacity.  Smith  v.  Elliot,  1  Pat.  & 
Heath.  807. 

25 


378  PARTIES. 

sible  the  conduct  of  the  parties  themselves  may  be.^  *  Al- 
though, for  instance,  a  court  of  equity  will  not  relieve  a  man 
who  assigns  property  to  another  with  the  view  of  defeating 
his  creditors,  the  case  is  diiFerent  if  the  person  who  assigns 
the  property  is  a  client,  and  the  person  to  whom  it  has  been 
assigned  is  his  attorney.  The  rule  of  public  policy  which 
prohibits  an  attorney  from  obtaining  any  advantage  in  trans- 
actions must  prevail,  and  the  attorney  must  reconvey  the 
property.^  So,  also,  the  purchase  of  a  bankrupt's  estate 
secretly,  by  a  person  for  the  benefit  of  the  solicitor  to  the 
assignees  was  set  aside  at  the  suit  of  the  bankrupt,  after  his 
bankruptcy  had  been  annulled,  though  there  was  evidence  to 
show  that  the  bankrupt  had  been  privy  to  the  transaction.' 

"When  a  party  to  an  illegal  or  immoral  contract  comes  him- 
self to  be  relieved  from  that  contract,  or  its  obligations,  he 
must  distinctly  and  conclusively  state  such  grounds  of  relief 
as  the  court  rcan  legally  attend  to.  He  should  not  accompany 
his  claims  to  relief,  which  may  be  legitimate,  with  claims  and 
complaints,  which  are  contaminated  with  the  original  immoral 
purpose.*  A  distinction  will  be  taken  between  cases  where  a 
party  has  actually  accomplished  the  bad  purpose  to  which  a 
deed  was  auxiliary,  and  cases  in  which  he  had  not  participated 
in  the  bad  purpose  which  it  was  the  very  object  of  the  deed 
to  procure.^  In  Sismey  v.  Eley,^  where  a  plaintiff  sought  to 
be  relieved  from  a  deed  by  which  he  had  agreed  to  pay  an 
annuity  to  a  woman,  on  the  ground  that  the  consideration  for 
it  was  a  promise  made  to  him  to  live  with  him  as  his  mistress, 

»  Law  V.  La-w,  Ca.  t,  Talb.  140;    St.  "  Batty  v.  Chester,  5  Beav.  103. 

John  V.  St.  John,  11  Ves.  o'So.  '  Smyth  v.  Griffin,  13  Sim.  254;  Ben. 

'  Ford  V.  Harriugton,  2  Smith  (Amer.)      yon  v.  Kettlefold,  17  Sim.  56. 


285. 

"  Adams  v.  Sworder,  2  D.  J.  <fe  S.  44. 


lb.  I. 


*  Ford  V.  Harrington,  16  N.  Y.  285  ;  Giimes  v.  Hoyt,  2  Jones'  Eq.  271; 
Johnson  v.  Cooper,  2  Yerg.  524. 


PARTIES.  370 

a  dtmurrer  to  the  bill  was  overruled,  as  it  did  not  appear  that 
the  plaintiff  had  availed  himself  of  the  promise. 

A  distinction  is  taken  in  equity  between  enforcing  illegal 
contracts,  and  asserting  title  to  moneys  arising  from  an  illegal 
contract.  If  the  transaction  alleged  to  be  illegal  is  completed 
and  closed,  so  that  it  will  not  be  in  any  manner  affected  by  what 
the  court  is  asked  to  do,  the  party  to  the  transaction,  who  has 
possessed  himself  of  the  moneys  arising  out  of  the  transaction, 
cannot  be  permitted  to  set  up  the  illegality  of  the  transaction 
against  the  otherwise  clear  title  of  the  other.  One  of  two 
partners,  or  joint  adventurers,  therefore,  who  has  possessed 
liimself  of  the  property,  common  to  both,  cannot  be  permitted 
to  retain  it,  by  merely  showing  that  in  realizing  it  some  pro- 
visions in  an  act  of  Parliament,  or  in  the  fiscal  law  of  a  foreign 
Btate,  may  have  been  violated.^  So,  also,  and  upon  a  similar 
principle,  if  two  trustees  are  equally  guilty  of  a  breach  of 
trust,  but  one  has  received  the  moneys,  the  other  may  main- 
tain a  bill  against  him  to  recover  the  amount.^ 

In  all  cases  of  fraud,  the  hand  of  the  court  is  not  arrested 
by  the  death  of  the  wrongdoer ;  but  the  same  relief  shall  be 
had  against  his  executors,  and  satisfaction  will  be  given  out  of 
his  estate  after  his  death.^  The  fact  of  the  surviv^or  of  two 
partners  having  been  sued  at  law,  will  not  free  the  estate  of 
the  deceased  partner  from  liability  in  equity,  where  alone  that 
estate  can  be  reached.*  The  estate  of  a  deceased  partner  of  a 
firm  of  solicitors  is  liable  for  a  fraud  committed  by  the  surviv- 
ing partner.' 

A  third  party  who  has  been  privy  to  a  fraud,  may  be  made 

•  Sharp  V.  Taj-lor,  2  Ph.  801 ;  M'Elair  v.  O'Brien,  2  Ea.  &  Re.  221 ;  Ingralmra 

V.  Gibbes,  17  How.  (Amer.)  2.32.     8ee  v.  Thorp,  7  Ila.  67;  Eawlins  v.   U  ick- 

also  Nash  v.  Ash,  1  Eden.  378;  Mince  ham,  3  D.  <fe  J.  304;    Greeley  v.  Moua- 

V.  PeterH,  liarg.  MSS.  No.  112,  p.  86  ;  ley,  4  D.  &  J.  78;  Walsham  v.  Staiutoa, 

Watts  V.  Brooks,  3  Ves.  612;  Kuowles  1  D.  J.  <fc  S.  690. 

r.  Hon2;hton,  11  Ves.  168.  *  Rawlins  v.    Wickhara,    3   D.    cfe  J. 

"  Baynard  v.  WooUey,  20  Beav.  583.  322. 

'  Garth  v.  Cotton,  3  Atk.  757  ;    Cur-  '  Sawyer  v.  Goodwin,  30  L.  J.  Ch. 

tis  V.  Curtis,  2  Bro.  C.  C.  620;  Falkner  578. 


380  PARTIES. 

a  j)arty  to  the  bill.^  If  third  parties  Lave  aided  the  directors 
of  a  company  in  misapplying  tlie  funds  of  the  company,  a 
bill  seeking  relief  both  against  them  and  the  directors  is  not 
multifarious.^  So,  also,  a  man  who  has  been  guilty  of  a  fraud, 
in  concert  with  one  of  several  trustees,  may  be  joined  in  a 
bill  for  relief  against  the  trustees  generally."  If  a  man  has 
abetted  a  fraud,  the  absence  of  a  personal  benefit  resulting 
from  it  is  no  excuse ;  he  may  be  justly  nfade  responsible  for 
its  results,  and  even  if  no  other  relief  can  be  had  against  him, 
he  may  be  compelled  to  pay  the  costs  of  the  suit.*  Solicitors, 
or  attorneys,  who  have  abetted  their  clients  in  a  fraud,  or  have 
prepared  deeds  to  carry  it  out,  may  be  made  parties  to  a  bill, 
to  set  the  fraudulent  transaction  aside,  and  are  liable  to  pay 
the  costs,  even  though  they  may  have  derived  no  personal 
benefit  therefrom.'  A  solicitor,  who  is  implicated  in  a  case  of 
fraud,  may  be  made  a  party  to  a  bill  seeking  relief  in  respect 
of  that  fraud,  merely  for  the  purposes  of  discovery,  the  only 
relief  asked  being  that  he  should  be  ordered  to  pay  costs.' 
The  case  of  course  is  all  the  stronger,  if  the  solicitor  has 
gained  a  personal  benefit  from  a  fraudulent  transaction  into 
which  he  has  induced  his  client  to  enter.' 

A  person  filling  a  position  of  a  fiduciary  character,  as  an 
agent,  is  liable  for  a  breach  of  duty,  though  he  may  have 
derived  no  benefit  from  it.  Where  two  agents  concur  in  a 
fraud,  and  one  of  them  only  derives  benefit  from  the  fraud, 
the  other  is  also  liable  in  equity  for  the  benefit  so  derived.^ 
Those  who,  having  a  duty  to  perform,  represent  to  others,  who 
are  interested  in  the  performance  of  it,  that  it  has  been  per- 

'  Tnrqnand  v.  Knight,  14  Sim.  644 ;  Berry  v.  Armitstead,  2  Keen,  227.    See 

Lnnd  V.  Blansliard,  4  Ha.  9;  Charlton  Cory  v.  Eyre,  1  D.  J.  &  S.  167. 
V.  Coombs,  4  Giff.  385.  'Gilbert  v.  Lewis,  1  D.  J.  <fe  S.  52. 

"  Luud  V.  Blansliard,  4  ITa.  9.  '  Bennett  v.  Vade,  2  Atk.  327 ;  Proc- 

•  Att.-Gcn.  V.  Cradock,  3  M.  &  C.  85.  tor  v.   Robinson,  35  Beav.    335.      See 

•  Seddon  v.  Connell,  10  Sim.  85.  Brent  v.  Brent,  10  L.  J.  Ch.  84. 

•  Bowles  V.   Stewart,   1   Scli.  &  Lef.  "  Walsbam  v.  Stainton,  1  D.  J.  &  S. 
227;    Beadles  ».  Burch,  10  Sim.  332;  678. 


I 


PAKTIES.  381 

formed,  make  themselves  responsible  for  all  tlie  consequences 
of  the  non-performance.^ 

If  a  man  has  been  induced  hj  the  false  representations  or 
fraud  of  a  particular  shareholder  in  a  company  to  purchase 
shares,  the  only  necessary  party  to  a  bill  filed  for  the  return  of 
purchase-money  and  for  an  indemnity,  is  the  person  who  sold 
the  shares.^ 

It  is  not  necessary  that  all  the  parties  charged  with  fraud 
should  be  made  parties.^ 

A  man  who  has  released  the  principal  actor  in  a  fraud,  can- 
not go  on  against  the  other  parties  who  would  have  been  liable 
only  in  a  secondary  degree.* 

In  a  suit  to  set  aside  a  settlement  of  real  and  personal  estate 
for  fraud,  or  undue  influence  on  the  part  of  the  trustees,  one 
or  more  of  the  parties  beneficially  interested  is  or  are  necessary 
parties.* 

A  partner,  being  liable  for  the  fraud  of  his  copartner, 
when  acting  within  the  proper  scope  of  the  partnership  busi- 
ness,* a  firm  of  bankers  or  solicitors  is  liable  for  fraud  prac- 
ticed upon  a  client  by  a  member  of  the  firm.*  The  client,  or 
principal,  is  entitled  to  relief  against  the  other  partners,  not 
only  if  the  case  is  one  in  which  he  might  have  recovered 

'  Blair  v.  Bromley,  2  Ph.  360.  *  Read  v.  Trest,  1  K.  <fe  J,  183. 

'  Stainbank  ?;.  Fernley,  9  Sim.   656;  '  Brydges  v.   Brantill,   12  Sim.  369; 

Mare  «.  Malachy,  1  M.  &  C.  559;  Tur-  Sadler  v.   Lee,   6  Bear.  33ii;  Blair  v. 

ner  v.  Hill,  11  Sim.  1.  Bromley,  6  lla.  542,  2  Ph.  354;  St.  Au- 

»  Soddnn  V.  Conncll,  10  Sim.  79.  byn  v.  Smart,  L.  R.  5  Eq.  183. 

*  Thompson  v.  Harrison,  2  Bro.  C  C. 
164 ;  I  Cox,  346. 


*  Locke  1).  Stevens,  1  Met.  560. 

Two  joint  owners  are  proper  parties  to  a  suit  for  a  misrepresentation  by 
one  who  was  employed  to  sell  the  joint  property.  White  v.  Sawyer,  16 
Gray,  586. 

A  joint  action  may  be  maintained  acjainst  two  persons,  if  both  made 
false  representations  at  the  time  of  the  sale,  although  one  onlv  was  inter- 
ested in  tlie  property.     Stiles  v.  White,  1  Met.  356. 


382  PEOOF. 

against  such  other  partners,  but  also  if  the  remedy  at  law 
against  the  other  partners  is  barred  by  lapse  of  time.^  Tlie 
original  liability  of  one  partner  for  the  fraud  of  a  copartner 
is  continued  as  well  after  as  before  the  dissolution  of  the 
partnership.^  A  fraud,  however,  committed  by  a  partner 
whilst  acting  on  his  own  separate  account,  is  not  imputable  to 
the  firm,  although,  had  he  not  been  connected  with  it,  he  might 
not  have  been  in  a  position  to  commit  the  fraud.* 

The  infancy  of  the  defrauding  party  will  not  exempt  him, 
for  though  the  law  protect  him  from  binding  himself  by  con- 
tract, it  gives  him  no  authority  to  cheat  others.* 

A  suit  which  has  been  instituted  for  the  purpose  of  setting 
aside  a  transaction  on  the  ground  of  fraud,  will  not  fail  merely 
because  the  bill  may  have  incorrectly  and  untruly  alleged  a 
third  person  to  have  been  a  participator  and  joint  actor  in  the 
fraud,  although  such  incorrect  mode  of  stating  the  case  may 
affect  the  costs.' 


PROOF. 

A  man  who  alleges  fraud  must  clearly  and  distinctly 
prove  the  fraud  he  alleges.  The  o?i%is  probandi  is  upon  him 
to  prove  his  case  as  it  is  alleged  by  the  bill.^  If  the  fraud  is 
not  strictly  and  clearly  proved,  as  it  is  alleged,  relief  cannot 
be  had,  although  the  party  against  whom  relief  is  sought  may 
not  have  been  perfectly  clear  in  his  dealings.'  Fraud  will  not 
be  carried  by  way  of  relief  one  tittle  beyond  the  manner  in 

'  Blair  v.  Bromley,  2  Ph.  354.  *  Burton  v.  Blakemore,   2  Jur.  1062 ; 

"  //,.  Bellamy    v.   Sabine,    2   Ph.  425,   448; 

*  Fx-pnrte  Evre,  1  Ph.  227  ;  Coomer  Blair  v.  Bromley,  5  Ha.  559  ;  Curzon  v. 
V.  Bromley,  5  Dea:.  &  Sm.  5S2;  Bishop  B  hvorthy,  11  Jiir.  916;  Jenninsjs  v. 
V  Countess  of  Jersey,  2  Drew.  143.  Broughton,    17   Bear.    239;    Wilde*. 

*  Evroy  v.  Nicholas,  2  Eq.  Ca.  Ab.  Gibson,  1  H.  L.  605  ;  Robson  v.  Earl  of 
488 ;  I'ory  v.  Gertchen,  2  Madd.  40 ;  Devon,  4  Jur.  N.  S.  248  ;  Lomax  v.  Rip- 
Overton  v  Bannister,  3  Ha.  503  ;  Stike-  ley,  24  L.  J.  Ch.  254  ;  Smith  v.  Kay,  7 
man  v.  Dawson.  1  Deg.  &  Sm.  90.  H.  L.  750. 

*  Reynell  v.  Sprye,  1  D.  M.  <fe  G.  684.  '  Mowatt  v.  Blake,  31  L.  T.  387 


I 


PROOF.  383 

which  it  is  proved  to  the  satisfaction  of  the  court.*  If  a  case  of 
actual  fraud  is  alleged  bj  the  bill,  relief  cannot  be  had  on  the 
bill  by  proving  only  a  case  of  constructive  fraud.^* 

If  the  bill  alleges  a  case  of  fraud,  and  the  title  to  relief 
rests  upon  that  fraud  only,  the  bill  will  be  dismissed  if  the 
fraud  as  alleged  is  not  proved.  It  cannot  be  allowed  to  be 
used  for  any  secondary  purpose.  But  if  the  case  does  not 
entirely  rest  upon  the  proof  of  fraud,  but  rests  also  upon 
other  matters,  which  are  sufficient  to  give  the  court  jurisdic- 
tion, and  the  case  of  fraud  is  not  proved,  but  the  other  matters 
are  proved,  relief  will  be  given  in  respect  of  so  much  of  the 
bill  as  is  proved.^ 

The  rules  of  evidence  are  the  same  in  equity  as  at  law.^ 
"Whether  certain  facts  as  proved  amount  to  a  fraud,  is  a  ques- 
tion  for  the  court  as  well  at  law  as  in  equity.f  The  facts  to 
constitute  a  fraud  must  be  proved  at  law  by  the  jury.*  In 
equity  they  are  found  by  the  court ;  but  a  court  of  equity  is 
not  justified  in  finding  such  facts   upon  any  less  or  different 

>Lnffv.  Lord,   11  Jur.  K  S.  50,  52,  Espey  v.  Lake,    10  Ha.  260;  Baker  v. 

per  Lord  Westhnry.  Bradley,    7  D.  M.  &  G.   597  ;  Traill  v. 

'  I'arr  v.  Jewell,  1  K.  <fe  J.  671.  Baring,  33  L.  J.  Ch.   521 ;  Ilickson  v. 

'  GlascDtt  V.  Lanij,  2  Ph.  310;  Wilde  Lombard,  L.  R.  1  App.  Ca.  324. 

V.  Gii)son,   1   ILL.  607;  Archbold  v.  ■•  Manning  v.  Lechmere,  1  Atk.  453 ; 

Commis3i'iner3  of  Charitable  Beqviests,  Man  v.  Ward,  2  Atk.  229;  Glyn  i;.  Bank 

2   H.   L.   440;  Price  v.   Berringt)n,    3  of  England,  2  Ves.  41 

Mac.  &  G.  4fsG;  Parr  v.  Jewell,  1  K.  <fe  ^  Murray  v.  Mann,  2  Exch.  539. 
J.  671;  Billage  v.  Southee,  9  Ha.  535; 


*  Eyre  v.  Potter,  15  How.  43  ;  Gibson  v.  Randolph,  2  Munf.  310  ;  Gerdo 
V.  Hawkins,  3  Dev.  Eq.  393;  Bkisdell  v.  Cowell,  3  Shep.  370. 

Allegations  without  proof,  or  proof  without  allegations,  can  never  be 
the  foundation  of  a  decree.     Brock  v.  McNaughtrey,  5  Mon.  216. 

An  allegation  of  fraud  is  not  sustained  by  proof  of  a  mistake  of  law. 
Gerde  v.  Hawkins,  3  Dev.  Eq.  393. 

Evidence  of  intoxication  can  not  be  introduced  under  a  bill  charging 
misrepresentution.     Hutchinson  v.  Brown,  1  Clarke,  408. 

t  Petlibone  v.  Stevens,  15  Ct.  19;  Beers  v.  Botsford,  13  Ct.  146. 

Fraud  is  not  to  be  con.sidcred  as  a  single  fact,  but  a  conclusion  to  be 
drawn  from  all  the  circumstances  of  a  case.  Brogden  v.  Walker,  3  H.  &  J. 
285. 


3S4  PROOF. 

kind  of  proof  tluan  would  be  required  to  satisfy  a  jury.  The 
law  in  no  case  presumes  fraud.  The  presumption  is  always  in 
favor  of  innocence,  and  not  of  guilt.  In  no  doubtful  matter 
does  the  court  lean  to  the  conclusion  of  fraud.  Fraud  is  not 
to  be  assumed  on  doubtful  evidence.  The  facts  constituting^ 
fraud  must  ba-clearly^nd_conclusively  established.^"'^  .Oxcu^z 
jtauces  of  mere  suspicion  will  not  warrant  the  conclu_sioQ__gf 
frau^i^:-^  If  the  case  made  out  is  consistent  with  Jaitilealiag.^ 
and  honesty,  a  charge  of  fraud  fails.' 

It  is  not,  however,  necessary,  in  order  to  establish  fraud, 
that  direct  affirmative  or  positive  proof  of  fraud  be  given."  In 
matters  that  regard  the  conduct  of  men,  the  certainty  of 
mathematical  demonstration  cannot  be  expected  or  required. 
Like  much  of  human  knowledge  on  all  subjects,  fraud  may 
be  inferred  from  facts  that  are  established.  Care  must  be 
taken  not  to  draw  the  conclusion  hastily  from  premises  that 
will  not  warrant  it ;  but  if  the  facts  established  aiford  a  suffi- 
cient and  reasonable  ground  for  drawing  the  inference  of  fraud, 
the  conclusion  to  which  the  proof  tends  must,  in  the  absence 

'  Bowen  v.  Evans,  2  H.  L.  257 ;  Pike  '  Hamilton  v.  Kirwan,  2  J.  <fe  L.  401; 

V.  Vitrers,  2  Dr.  &  Wal.  267.  Pares  v.  I'an-s,  33  L.  J.  Ch.  218. 

'  fi-enchard  v.   Wanley,   2  P.  Wms.  "  Llewc-llin  ;•.  Mackworth.  2  Atk,  40; 

166;  Bath   and  Montaiju's  Case,  3  Ch.  Yilliers  ?;.  Villiers,  i6.  71 ;  Man  i'.  Ward, 

(a.  114;  Townspnd  f.  Low^ield,  1  Ves.  ih.220;  East  India  Co.  v.  Donald,  9 

35,  3  Atk.  536 ;  M'Queen  v.  Farquhar,  Ves.  282 ;  Stikemaii  v.  Dawson,  1  I  leg. 

11    Ves.  467;   Walker  v.   Symonds,   3  <fe  Sm.  105  ;  Pickles  «;.  Pickles,  9  W.  R. 

Sw.  61 ;  Hamilton  v.  Kirwan,  2  J.  d'  L.  397  ;  31  L.  J.  Ch.  146. 
401;  Smith  v.  Pawson,  25  L.  T.  40. 


*  Teaclde  r.  Bailey,  2  Brock,  43  ;  Sanbome  v.  Stetson,  3  Story,  481 , 
Christmas  v.  Spink,  15  Ohio,  600  ;  Buck  v.  Sherman,  2  Doug.  176;  Casey 
V.  Allen,  1  A.  K.  ]Marsh.  465  ;  Hamilton  v.  Beal,  2  H.  &  J.  414  ;  Petrie  v. 
Wright,  6  Smed.  &  Mar.  642. 

When  the  fraud  relates  to  title,  the  nature  of  incumbrances  and  out- 
standing titles  must  be  shown,  so  that  the  court  may  judge  of  their  valid- 
ity. Ayres  r.  Mitchell,  3  Smed.  &  M.ir.  G83;  Moss  v.  Davidson,  1  Smed.  & 
Mar.  112  ;  Wilson  v.  Leaffoor,  1  J.  J.  Marsh.  6. 

t  Clark  t).  White,  12  Pet.  178;  Phettiplace  v.  Sayles,  4  Mason,  812; 


PROOF.  385 

of  explanation  or  contradiction,  be  adopted.^  *  It  is  enougli 
if  facts  be  established  from  whicb  it  would  be  impossible, 
upon  a  fair  and  reasonable  conclusion,  to  conclude  but  that 
there  must  have  been  fraud.^  The  motives  with  which  an 
act  is  done  may  be,  and  often  are,  ascertained  and  determined 
by  circumstances  connected  with  the  transaction,  and  the 
parties  to  it.  Yarious  facts  and  circumstances  evince,  some- 
times with  unerring  certainty,  the  hidden  purposes  of  the 
mind.»  "  A  deduction  of  fraud,"  says  Kent,*  "  may  be  made 
not  only  from  deceptive  assertions  and  false  representations, 
but  from  facts,  incidents,  and  circumstances,  which  may  be 
trivial  in  themselves  ;  but  may,  in  a  given  case,  be  often 
decisive  of  a  fraudulent  design."  ' 

Though  the  proof  of  fraud  rests  on  the  party  who  alleges 
it,  circumstances  may  exist  to  shift  the  burthen  of  proof  from 
the  party  impeaching  a  transaction  on  the  party  upholding  it. 
If  the  evidence  establishes  a  prima  facie  case  of  fraud,  or 
shows  that  an  instrument  is  false  in  any  material  part,  the 


'Rex  V.  Burclett,  4  B.  <fe  Aid.    IGl,  295;  Ilennequiu    v.  Naylor,   10  Smith 

102  ;  ^tikeman  v.  Dawson,  1  Deg.  &.  Sm.  (Amer.),  141. 

105:  lluuiblirey  v.  Giver,  28  L.  J.  Ch.  *  2  Comm  p.  484. 

406,  "  See  Clai-kson  o.  llanway,  2  P.  Wm. 

''Pickles  V.  Pickles,  9  W.  R.  397;  31  205;    Bennett  v.   Vade,   9'  .M..d.   315; 

L.J.  Ch.  146;  Re  Marsdea's  Trust,  4  Hubbard   v.   Briggs,    4   Till".  (Amer.), 

Drew.  599.  538. 

*  ivicliuls  V.  Pinner,  4  Smith  (Amer.), 


Taylor  v.  Fleet,  4  Barb.  95  ;  White  v.  Trotter,  4  Smccl.  &  ]\Iar.  30  ;  Gregg 
n.  Sayrcs,  8  Pet  244. 

This  means  no  more  tban  that  the  proof  must  be  such  as  to  create 
belief,  and  not  merely  suspicion.  A  rational  belief  should  not  b3  dis- 
carded because  it  is  not  conclusively  established.  Watkius  v.  Wallace,  19 
Mich.  57. 

*  Reed  v.  Noxon,  48  111.  323 ;  M'Conike  r.  Sawyer,  12  N.  H.  396 ; 
pope  V.  Andrews,  1  Sraed.  «fc  Mar.  135 ;  Denton  i\  McKenzie,  1  Dessau. 
289. 

Influence  is  not  susceptible  of  direct  i^roof.  Conant  v.  Jackson,  16 
Vt.  835. 


386  PEOOP. 

burthen,  of  showing  that  the  transaction  was  fair  lies  upon 
the  party  w'ho  seeks  to  upliold  it.^  If,  for  example,  it  appear 
that  the  donee  of  a  power  of  appointment  had  at  any  time, 
before  the  exercise  of  the  power,  the  intention  to  derive  a 
personal  benefit  from  its  exercise,  the  burthen  rests  on  those 
who  support  the  appointment  to  show  that  the  intention  had 
been  abandoned  at  the  time  of  the  execution  of  the  appoint- 
ment.^ So,  also,  if  a  man  fraudulently  mingles  moneys 
belonging  to  another  with  moneys  of  his  own,  it  lies  on  him 
to  sever  the  portion  which  is  afiTected  by  the  fraud,  from  that 
which  is  not  affected  by  the  fraud.^  *  Upon  the  same  prin- 
ciple, if  it  appear  that  a  fiduciary  or  confidential  relation  exist 
between  the  parties  to  a  transaction,*  or  if  it  be  established  by 
evidence  that  one  of  the  parties  possessed  a  power  of  influence 
over  the  other,®  the  burthen  of  proof  lies  upon  the  party  filling 
the  position  of  active  confidence,  or  possessing  the  power  of 
influence,  as  the  case  may  be,  to  establish,  beyond  all  reason- 
able doubt,  the  perfect  fairness  and  honesty  of  the  transaction. 
Parol  evidence  is  admissible  in  such  cases  to  prove  the  fairness 
of  the  transaction ;  but  it  is  to  be  received  and  weighed  with 
the  most  scrupulous  accuracy,  and  to  be  dealt  with  as  having 
its  weight  afiected  by  the  circumstances  under  which  the 
parties  stood.® 

When  a  party  is  under  the  obligation  of  showing  that  an 


'  "Watt  V.  Grove,  2  Sch.  &  Lef.  502;  son  v.  Heathorn,  1  Y.  <fe  C.  C.  C.  340; 

Prince  of  Wales  Assurance  Co.  v.  Pal-  Allfrey  v.  Allfrey,  1  Mac.  <fe  G.  99  ;  Bil- 

iner,  25  Beav.  005;  Russell  v.  Jackson,  lage  v.  Southee,  y  Ha.  540;  Mooi-e  v. 

10  Ha.  218  ;  Cottam   v.   Eastern  Coun-  Prance,  ib.  303  ;  supra,  pp.  104,  116. 

ties  Railway  Co.,  1  J.&H.  243;  Dowle  *  Cooke  v.  Lamotte,   15  Beav.  240; 

V.  Sauiulers,  2  H.  <fe  M.  250.  Kay  n.  Smith,  7  H,  L.  750;  supra,  pp. 

'  Humphrey  v.  Olver,  28  L.  J.  Ch.  132,  138. 

40G.  "  Be  Holmes's  Estate,   3   Giff    347 ; 

»  Russell  V.  Jackson,  10  Ha.  213.  Walker  v.  Smith,  20  Beav.  394. 

♦Gibson  v,  Jeyes,  6  Ves.  278;  Ben- 


*  Steers  v.  Hoagland,  50  HI.  277 ;  Well  v.  Silverston,  6  Busli    698 ; 
Brackenridge  v.  Holland,  2  Blackf,  377. 


PROOF.  387 

unprofessional  person  understood  the  contents  of  a  deed  or 
instrument  wliich  he  executed,  the  mere  proof  of  its  having 
been  read  over  to  him,  unaccompanied  with  proper  explana- 
tions, is  not  sufficient  to  satisfy  the  court  that  the  person  hear- 
ing it  read  understood  it.^  It  must  be  proved  by  those  who 
claim  under  it,  upon  satisfactory  evidence,  that  the  nature, 
effect,  and  contents  of  the  deed  were  explained  to,  and  per- 
fectly understood  by  him.^  * 

The  intervention  of  an  independent  third  party  or  adviser 
is  an  important  ingredient  in  showing  the  fairness  of  a  trans- 
action.' If  a  solicitor  be  employed,  there  is  always  strong 
prima  facie  evidence  that  the  party  for  whom  he  was  acting 
knew  the  nature  of  the  transaction;*  in  all  cases,  indeed, 
where  an  independent  legal  adviser  or  solicitor  is  employed, 
the  evidence  that  everything  which  was  necessary  to  be  known 
had  been  brought  to  the  knowledge  of  his  employer  would  bo 
conclusive.'  The  intervention,  however,  of  another  solicitor  or 
adviser,  who,  with  the  knowledge  of  the  other  party  to  the 
transaction,  a  former  solicitor  of  his  employer,  neglects,  or  does 
not  properly  discharge  his  duty,  is  not  sufficient  to  support  a 
transaction  between  them.' 


'  Hoghton  V.  Hoghton,  1 5  Beay.  311;  Dayies,  4  Giff.  417  ;  Cartledge  v.  Rad- 

Moore  v.  Prance,  9  Ha.  304.  See  Sliarp  bourne,  14  W.  R.  604. 

V.  Leach,  31  Beav.  503  ;  Toker  v.  Toker,  '  Cooke  v.  Lamotte,  15  Beav.  240. 

ib.  629  ;  32  L.  J.  Ch.  325.  "  Denton  v.  Donuer,  23  Beav.  291. 

"  Moore  v.  Prance,  9  Ha.  304  ;  Ander-  *  De  Montmorency  v.  Devereux,  7  CL 

ecu  V.  Ellsworth,  3  Giff.  154  ;  Davies  v.  &  Fin.  188, 

«  Gibba  v.  Daniel,  4  Giff.  1. 


*  Owing's  Case,  1  Bland,  370  ;  Selden  v.  Mirers,  20  How.  506. 

A  court  of  equity  will  not  commonly  act  upon  the  ignorance  of  a  deed 
by  a  person  who  can  read  and  write  ;  but  requires  evidence  of  a  contriv- 
ance in  the  opposite  party  to  have  the  instrument  drawn  wrong,  and  keep 
the  maker  in  the  dark.     Michael  v.  Michael,  4  Ired.  Eq.  349. 

"When  a  grantor  undertakes  to  road  a  deed,  he  must  read  it  correctly; 
and  if  he  does  not,  it  is  a  fraud.  That  the  grantee  is  capable  of  reading 
it  himself  makes  no  difference.     Stamps  v.  Bracy,  1  How.  (]\Iiss.)  313. 

The  iDresimiptiou  that  a  person  who  can  read  knows  the  contents  of 


388  PROOF. 

A  party  is  not  estopped  from  avoiding  his  deed,  by  proving 
that  it  was  executed  for  a  fraudulent,  illegal,  or  immoral 
purpose,'^  l!^otwithstanding  the  solemnity  and  force  which 
the  law  ascribes  to  deeds,  and  all  the  strictness  with  which  it, 
in  general,  prohibits  the  introduction  of  extrinsic  evidence  to 
prove  that  an  instrument  goes  beyond,  or  does  not  fully  con- 
tain, or  incorrectly  exhibits,  the  terms  of  the  contract,  which 
it  was  written  and  signed  for  the  purpose  of  expressing  and 
recording;  the  rule  is  settled,  and  not  merely  in  courts  of 
equity,  that  a  deed,  on  its  face  just  and  righteous,  may  be 
vitiated  and  avoided,  by  alleging  and  adducing  extrinsic  evi- 
dence to  prove  that  it  was  founded  on  a  consideration,  or  had 
a  view  or  purpose  contrary  to  law  or  public  policy.^  Although 
a  party  may  thus,  in  certain  cases,  be  enabled  to  take  advantage 
of  his  own  wrong,^  this  evil  is  of  a  trifling  nature  in  compari- 
son with  the  flagrant  evasions  that  would,  in  many  cases,  result 
from  the  adoption  of  a  difierent  rule,* 

If  a  person  be  induced  by  fraudulent  statements  to  enter 
into  a  written  contract,  it  is  competent  for  him  to  prove  fraud 
by  evidence  aliunde,  although  the  wi'itten  contract,  or  the 
deed  of  conveyance,  is  silent  on  the  subject  to  which  the 
fraudulent  representation  refers.''*     So,  also,  fraud,  whether 

'  Collins  V.  Biantern,  2  Wils.  341 ;  1  "  Reynell  v.  Sprye,  1  D.  M.  <fe  G.  672, 

Smith's  L.  C.  825  ;  Paxton  v.  I'opliauj,  per  Knight  Bruce,  L.  J. 

9  East,  421 ;  Gas  Li^ht  and  Cuku  Co.  v.  '  Doe  v.  Ford,  3  A.  &  E.  654;  Doe«. 

Turner,  5  I'ing.  N.  C.  666;    6  Bin2:.  N.  Ilowells,  2  B.  <fe  Ad.  747. 

C.  324 ;  Stratford  and  Moreton  Railway  *  Benyon  v.  Nettlefold,  3  Mac.  &  G. 

Co.  V.  Straiion,  2  B.  ct  Ad.  518;  Hill  v.  102.     iSee  Mallalieu  v.  Hodgson,  16  Q. 

Manchester  Waterworks  Co.,  ?6.   5o2,  B.   689;  Bowes  v.  Foster,  2  H.  «fe  K 

553;  D..e  i;.  Howells,  ib.  747;  Benyon  779. 

V.  iSTettlefold,   17  Sim.  56  ;  3  I\Iac.  &  G.  ^  Dobell  v.  Stevens,   3  B.  <fe  C.  623; 

94 ;  Ilorton  v.  Westminster  Improve-  Wright  v.   Crookes,  1   Sc.  N.   R.  685, 

me'nt  Commissioners,  7  Exch.  780.  698;  Hotson  v.  Browne,  9  C.  B.  N.  S. 

442. 


the  instrument  which  he  executes,  only  stands  until  proof  to  the  contrary 
is  produced.     Harris  v.  Dehimar,  3  Ired.  Eq.  213. 

*  Boyce  «.  Grundy,  3  Pet.  210 ;  Brainerd  v.  Brainerd,  15  Ct.  575 ;  Hol- 
b?ook  v.  Burt,  22  Pick.  346  ;  Flagler  v.  Preiss,  3  Rawle,  345  ;  Kennedy  «. 
Kennedy,  2  Ala.  571 ;  "Wilson  v.  Watts,  9  Md.  356. 


PROOF.  380 

in  a  record  or  deed,  or  writing  imder  seal,  may  be  proved  by 
parol  evidence.^  So,  also,  if  it  appear  from  tbe  written  evi- 
dence, that  tlie  agreement  really  made  between  the  parties 
is  not  stated  by  the  deed,  parol  evidence  is  admissible  to 
explain  it.^ 

The  testimony  of  one  single  witness,  unless  supported  by 
circumstances,  cannot  be  allowed  to  prevail  against  a  positive 
denial  by  the  answer.  If  a  defendant  positively,  plainly,  and 
precisely  denies  the  assertion,  and  one  witness  only  proves  it 
as  positively,  clearly,  and  precisely  as  it  is  denied,  and  there  is 
no  circumstance  attaching  to  the  assertion  to  overbalance  the 
credit  due  to  the  denial,  as  a  positive  denial,  a  court  of  equity 
will  not  act  upon  the  testimony  of  thart  witness.  Where,  ac- 
cordingly, a  man  positively  denies  notice,  and  one  witness  is 
adduced  to  prove  the  fact  of  notice,  the  court  will  place  as 
much  reliance  on  the  conscience  of  the  defendant,  as  on  the 
testimony  of  a  single  witness,  without  some  circumstance  at- 
taching a  superior  degree  of  credit  to  the  latter.®  * 


'Filmer  v.  Gott,  4  Bro.  P.  C.    230;  C.  C.  52;  Lord  Cranstown  v.  Johnson, 

Robinson  v.  Lord  Vernon.  7  C.  B.  N.  S.  3  Ves.    170;  East  India  Co.  v.  il'Don- 

231;  Rogers  v.  lladlej^  2  H.  &  C.  227.  aid,  9  Ves.   275;  Pilling  v.  Armitage, 

*  Cripps  c.  Jee,  4  Bro.  C.  C.  472.  12  Ves.  80.  See  Whit  worth  v.  Gaugain, 

'  Evans  v.  Bicknell,  6  Ves.    183,  per  Cr.  &  Ph.  325. 
Lord  Eldon ;  Pember  v.  Mathers,  1  Bro. 


*  Garrow  v.  Davis,  15  How.  273 ;  Flagg  v.  Mann,  2  Sumner,  486 ; 
Thompson  v.  Sanders,  6  J,  J.  Marsh,  94 ;  Green  v.  Tanner,  8  ]\Iet.  411  ; 
Miller  v.  Tolleson,  1  Hai-p.  Ch.  143. 

One  witness  and  coiToborating  circumstances  amounting  to  a  violent 
presumption  are  sufficient  to  overcome  the  denial.  McCormick  v.  Malin, 
5  Black f.  509 ;  Denton  v.  M'Kenzie,  1  Dessau,  289. 

To  have  this  effect,  the  answer  must  be  direct,  positive,  and  unequiv- 
ocal.    Farnam  v.  Brooks,  9  Pick.  213. 

A  denial  according  to  the  best  of  the  defendant's  recollection  and  be- 
lief is  not  sufficient.     Town  v.  Nccdham,  3  Paige,  546. 

If  the  facts  admitted  by  the  answer  establish  fraud,  they  must  be  held 
to  outweigh  the  denial.      Cunningham  r.  Freeborn,  3  Paige,  557  ;  Dick  v. 


390  COSTS. 

COSTS. 

The  general  rule  with  respect  to  costs,  being  that  costs  fol- 
low tho  event,  and  that,  prima  facie,  he  who  succeeds  ought 
to  have  them  ;  Mf  a  transaction  is  set  aside,^  or  a  bill  for  the 
specific  performance  of  a  contract  is  dismissed,^  on  the  ground 
of  misrepresentation,  concealment,  undue  influence,  or  any 
other  species  of  fraud,  the  successful  litigant  is,  as  a  general 
rule,  entitled  to  the  costs.  So,  also,  if  a  bill  be  filed  for  the 
rescission  of  a  transaction,  on  the  ground  of  fraud,  and  the 
charge  of  fraud  fails,  the  dismissal  is,  in  general,  with  costs.* 
So,  also,  wlien  the  specific  performance  of  a  contract  is  resisted 
on  the  ground  of  fraud,  and  the  charge  of  fraud  fails,  the  de- 
cree is,  in  general,  with  costs.^  So,  also,  when  a  purchaser  ob- 
tains specific  performance,  with  compensation,  it  will  be,  in 
general,  with  costs.® 

'  Townsend  v.   Champernowne,  3  T.  *  Langley   v.    Fisher,    9    Beav.    91 ; 

&  C.  527  ;  Parr  v.  Lovegrove,  4  Jur.  N.  Loader   v.    Clark,    2    Mac.  &  G.   SS^  ; 

g   500.     '  Pulsford    v.    Kichards,    17    Beav.    87; 

'^Edwards   v.   M'Cleay,  2   Sw.  289;  Jennings  v.  Broughton,   ib.  239;  Dol- 

Bellamy  v.  Sabine,  2  Ph.  42.5  ;  Dent  v.  man    v.   Nokes,  22   Beav.    402  ;    New 

Bennett,  4   M.   &  C    269 ;    Gibson  v.  Brunswick,  &c.  Railway  Co.  v.  Cony- 

D'Este  2  y.  &,  C.  C.  C.  681  ;  Mulhallen  beare,  9  II.   L.  735;  Luff  v.   Lord,  11 

V.  Marum,  3  Dr.  &  War.  317 ;  Waters  v.  Jur.  N.  S.  50;   Straker  v.  Ewing,  34 

Thorn,  22  Beav.  561  ;  8liin  v.  Cruncher,  Beav.  147. 

1  D.  F.  &  J.  520  ;  Dally  v.  Wonham,  33  ^  Abbutt  v.  Sworder,  4  Deg.   &  G. 

Beav     162;    Baker  v.  Monk,  ib.   425;  460 ;  Haywood  v.  Cope,  25  Beav.  140; 

Davi?'S  V  Davies,  4  Gift.  417.  Clarke  v.  Mackintosh,  4  Giff.  1;:14. 

'Vancouver  v.  Bliss,  11  Ves.  463;  "  Leyland  v.   lllingworth,  2  D.  F.  <fe 

Lord  Brooke  w.   Roundthwaite,  5   Ha.  J.  248  ;  Gedge  v.  Duke  of  Montrose,  26 

306  ;  Myers  v.  Watson,  1   Sim.   N.   S.  Beav.  45. 
529;  Cox  v.  Coventon,  31  Beav.  38S. 


Grissom  1  FreemaB,  428  ;  Gardiner  Bank  v.  WTieaton,  8  Greenl.  373  ;  Gran- 
nis  V.  Smith,  3  Humph.  179  ;  Gazzam  v.  Poyntz,  4  Ala.  374. 

Mucli  reliance  should  not  be  placed  upon  loose  conversations  or  con- 
fessions of  the  party  to  overbalance  Ms  solemn  denial  in  his  answer. 
Flagg  V.  Mann,  2  Sumner,  486. 

When  an  executor  or  administrator,  answering  in  his  representative 
character  alleges  facts  of  which  he  can  have  no  personal  knowledge,  his 
answer  -will  be  allowed  its  due  weight  only,  and  is  not  entitled  to  the  full 
influence  of  the  answer  of  a  man  speaking  of  the  facts  which  may  be 
within  his  own  knowledge.  Clark  v.  Van  Riemdyke,  9  Cranch,  153; 
Dugan  V.  Gittings,  3  Gill,  139. 


COSTS.  391 

Though  the  general  rule  is  that,  prima  facie,  he  wlio  suc- 
ceeds ought  to  have  the  costs,  costs  in  equity  do  not  always 
follow  the  event.^  There  may  be  often  circumstances  of  an 
equitable  nature  to  exempt  the  unsuccessful  party  from  the 
payment  of  costs.**  When,  for  instance,  a  bill  for  the  recis- 
sion  of  a  transaction  on  the  ground  of  misrepresentation  was 
dismissed,  the  dismissal  was  without  costs,  the  court  being 
satisfied,  although  the  charges  as  to  misrepresentation  had 
failed,  that  the  property  had  not  been  correctly  described.^  So, 
also,  where  a  bill  for  the  rescission  of  a  transaction,  on  the 
ground  of  undue  influence,  or  of.advantage  taken  of  a  fiduciary 
position,  was  dismissed  on  the  ground  of  acquiescence,  or  de- 
lay in  instituting  the  suit,  or  even  on  the  merits,  the  dismissal 
was  without  costs,  the  court  being  satisfied  that  the  plaintiff 
had  a  reasonable  cause  of  suit,  or  that  the  conduct  of  the  de- 
fendant had  rendered  an  investigation  not  unreasonable.*  So, 
also,  if  there  has  been  negligence  on  the  part  of  the  plaintiff, 
he  will  not  have  his  costs,  althougli  he  succeed  in  the  suit.' 
So,  also,  although  a  bill  is  dismissed,  it  will  be  without  costs 
if  there  has  been  negligence.®  So,  also,  in  a  case  where  relief 
was  given  against  a  transaction  on  the  ground  of  undue  in- 
fluence, costs  were  not  given  to  the  plaintiff,  as  her  conduct 

*  Staines  v.  Morris,  1  V,  cfe  B..  16.  Montmorency  v.  Devereux,  7  CI,  &  Fin 
"Vancouver   v.  Bliss,  11  Ves.  463;       188;  Salmon  v.  Cutts,  4  Deg.   <fe  Sm 

Townsend  V.  Champernowne,  3  Y.  <fe  C.  125;    Baker   v.   Read,   18  Beav.   398 

527;   Grove  v.  Bastard,  1  D.  M.  <fe  G.  Hartopp   v.   Ilartojjp,    21    Beav.    274 

78  ;  Lyon  v.  Home,  16  W.  R.  824.  Wright  v.  Vanderplank,  2  K.  A  J.  18 

'  Bartlett  v.   Salmon,  6  D.  M.  <fe  G.  Clegg  v.  Edmondson,  8  D.  M.  &  G.  806 

40;  Hallows  v.  Fernie,  L.  R.  3  Eq.  520.  Clanricarde  v.  Heniiing,  30  Beav.  175, 

*  Montesquieu  v.    Sandys,    18   Ves.  Toker  v.  Toker,  31  Beav.  629,  32  L.  J 
301 ;  Champion  v.  Rigby,  9  L.  J.  Ch.  N.  Ch.  326. 

S.   211;   Fyler  v.  Fyler,  3  Beav.  550;  "  Allen  v.  Knight,  5  Ha.  280. 

Edwards  v.   Meyrick,  2  Ha.    75 ;   De  °  Evans  v.  Bicknell,  6  Ves,  173. 


*  M'Donald  v.  Neilson,  2  Cow.  139;  Bradley  «.  Chase,  22  Me.  511; 
White  i\  IVIcday,  2  Edw.  Ch.  48G  ;  Pearce  r.  Chastain,  3  Kelly,  220;  Sut- 
phen  V.  Fowler,  9  Paige,  280;  Reiuick  v.  Smith,  2  II.  &  J.  471;  Spencer  v. 
Spencer,  11  Paige,  21)9. 


392  COSTS. 

was  not  free  from  blame.*  So,  also,  althongli  a  transaction  is 
set  aside,  the  rescission  may  be  without  costs,  if  the  defendant 
is  free  from  moral  blame.'^  So,  also,  where  the  plaintiff  is 
partice2)s  criminis,  and  seeks  to  set  aside  a  security  on  the 
ground  of  public  policy,  the  decree  will  be  without  costs.*  So, 
also,  although  specific  performance  be  decreed,  the  decree  will 
be  without  costs,  if  the  party  resisting  performance  had  a  fair 
and  reasonable  ground  for  doing  so.*  In  Higgins  v.  Samels,^ 
where  a  bill  for  the  specific  performance  of  a  contract  was  dis- 
missed, on  the  ground  of  misrepresentation,  the  dismissal  was, 
under  the  circumstances  of  the  case,  without  costs.  The  court 
always  exercises  its  discretion  in  dismissing  a  bill  for  specific 
performance,  and  with  costs,  on  the  ground  of  circumstances 
which  would  not  be  sufficient  to  cancel  the  agreement  on  the 
ground  of  fraud.®  If,  on  the  other  hand,  the  defendant  has 
been  to  blame  in  the  matter,  or  has  by  conduct  contributed  to 
the  litigation,  the  dismissal  of  a  bill  for  specific  performance 
will  be  without  costs.' 

As  a  general  rule,  where  costs  have  been  occasioned  by  the 
conduct  of  either  party,  the  party  who  occasioned  the  costs 
must  bear  them ;  and  where  by  the  misconduct  of  both  parties, 
neither  has  his  costs  :  and  where  a  suit  has  been  rendered  ne- 
cessary by  the  misconduct  of  either  party,  still  a  part  of  the 
costs  may  have  been  rendered  necessary  by  the  other  party.® 
If,  accordingly,  a  man  succeeds  in  obtaining  the  relief  prayed 

'Lyon  V.  Home,  16  W.  R.  824.  but  see  Jackman  v.  Mitchell,  13  Vcs. 

"  Ward  't>.  Hartpole,  3    Bligh,  490;  581.     Comp.  Davies  i>.  Otty,  35  Beav. 

Wood  V.  Abrey,  3  Madd.  423 ;  Groves  v.  208. 

Perkins,  6  Sim.  576 ;  Baker  D.  Carter,  1  *  Burrowes   v.   Lock,    10  Ves.   4*70; 

Y.   &  C.  250;   Stanton  v.  Tattersall,  1  Vancouver  v.  Bliss,  11  Ves.  463;  Fen. 

Sm.  &  G.  536  ;  Prideaux  v.  Lonsdale,  1  ton    v.    Browne,    14    Ves.    150.      See 

D.  J.   &  S.   439.     Jn  particular  cases,  M'Queen  i'.  Farquliar,  11  Ves.  482. 

the  plaintiff  may  have  to  pay  the  costs,  ^  2  J.  <fe  H.  460. 

although  the  transaction  is  "set  aside,  if  ®  Davis  v.  Sj-raonds,  1  Cox,  402. 

the    defendant    be    free    from    moral  '  Walters  v.  Morgan,   3  D.  F.  <fe  J. 

blame.     Davies  v.  Otty,  35  Beav.  208.  718. 

'  Debenh;ira  v.  Ox,  1  Ves.  276  ;  IMor-  "  Parr  v.  Lovegrove,  4  Jur.  N.  S.  601, 

gan  V.  Bruen,  LI.  <t  G.  temp.  Sug.  180;  per  Kindersley,  V.  0. 


COSTS.  393 

for,  and  has  the  costs  of  the  suit  generally,  but  fails  to  establisli 
allegations  of  fraud  in  the  bill,  he  must  pay  the  costs  occasioned 
by  such  allegations  being  introduced,*  or,  for  the  sake  of  sim- 
plicity, no  costs  will  be  given  to  either  side  when,  but  for  the 
allegations  of  fraud,  the  plaintiff  would  have  been  entitled  to 
the  costs.^  In  Khodes  v.  Bete,^  the  defendant  was  not  ordered  . 
to  pay  costs,  though  the  transaction  was  set  aside,  inasmuch  as 
the  case  of  the  plaintiff  failed  to  a  considerable  extent,  and  in- 
asmuch as  in  so  far  as  it  succeeded,  it  was  by  force  of  the  law 
of  the  court,  and  not  by  any  merits  of  his  own,  the  evidence 
adduced  by  him  being  also  irrelevant  and  overcharged.  In 
Staniland  v.  TTillot,*  where  charges  of  fraud  in  the  bill  were 
neither  supported  nor  repelled  by  evidence  on  either  side,  the 
costs  were  not  thereby  affected,  as  it  did  not  appear  that  any 
costs  were  specially  occasioned  by  such  charges.  In  Fyler  v. 
Fyler,'  however,  a  bill  containing  unproven  charges  of  fraud 
was  dismissed  without  costs,  because  the  defendants,  by  mixing 
up  their  personal  interests  in  the  transactions  in  question,  had 
rendered  an  investigation  not  unreasonable.  In  like  manner, 
charges  of  fraud  made  by  defendants  will,  if  unsubstantiated,  be 
visited  with  costs,  even  though  the  defendant  gets  the  costs  of 
the  suit  generally.®  So,  also,  the  bill  will  be  dismissed  without 
costs,  if  the  conduct  of  the  defendant  has  not  met  with  the  ap- 
proval of  the  court.'' 

Where  plaintiff  succeeds  in  a  suit  on  the  ground  of  fraud^ 
he  will  be  entitled  to  all  the  costs  occasioned  by  it,  and,  there- 
fore, in  Stanley  v.  Bond,^  a  bill  for  the  delivery  of  securities 

»  Blest  V.  Browne,  8  Jur.  K  S.  602 ;  *  3  Mac.  &  G.  664. 

Joues  V.  Ricketts,  10  W.  R.  576.     ^ce  "  3  Beav.  550. 

Harvey  v.  Mount,  8  Beav.  439 ;  Shackle-  *  Wright  v.  Howard,  1   Sim.  &  St. 

ton   V.    Sutcliffe,    1   Deg.   &  Urn.   623 ;  205  ;  Warrin  v.  Thomas,  2  W.  R.  442 ; 

Bromley  v.  Smith,  26   Beav.    670 ;  St.  Pledge  v.  Buss,  John.  666 ;  Theyer  v. 

Albyn  v.  Harding,  27  Beav.  11 ;  Baker  Tombs,  12  W.  R.  512. 

V.  Bradley,  7  D.  M.  &  G.  620.  '  Leather    Cloth    Co.    v.    Americaa 

»  Culliiigworth    v.    Lloyd,   2    Beav.  Leather  Cloth  Co.,  33  L.  J.  Ch.  199. 

385  ;  Rawlins  v.  Wickham,  1  Giflf.  356.  '  6  Beav.  423. 

«  L.  B.  1  Ch,  App.  262. 

26 


304  COSTS. 

fraudulently  obtained,  being  taken  jpro  confesso,  the  plaintiff 
was  held  entitled  to  the  costs  of  an  action  at  law,  com- 
menced on  the  securities,  though  not  specifically  prayed  for  by 
the  bill. 

If  a  bill  containing  allegations  of  fraud  be  demurrable,  and 
the  defendant  do  not  demur,  his  not  having  demurred  will  be 
a  reason  for  refusing  him  his  extra  costs  at  the  hearing.* 

If  acts  are  charged  against  a  party,  which  are  in  them- 
selves fraudulent,  the  court,  upon  the  question  of  costs,  always 
considers  the  bill  as  imputing  fraud,  although  the  word  fraud 
be  not  used  in  the  bill.^ 

Although  a  suit  cannot  be  maintained,  the  court  may  dis 
miss  it  before  the  hearing,  even  without  costs,  if  the  defendant 
has  been  guilty  of  gross  fraud.^ 

A  solicitor,  or  legal  adviser,  who  has  abetted  or  mixed 
himself  up  in  that  character,  in  a  fraudulent  transaction,  may 
be  made  a  party  to  the  suit,  for  the  mere  purpose  of  having 
the  costs  paid  by  him.*  He  cannot  excuse  himself  from  the 
payment  of  costs,  on  the  ground  that  he  acted  as  his  clieiit's 
adviser.'  In  a  case  where  a  solicitor  was  free  from  all  moral 
blame,  and  took  no  benefit  from  the  transaction,  the  costs  of  a 
suit  to  set  aside  the  transaction  were,  nevertheless,  thrown  on 
him,  because  he  had  not  explained  to  his  client  the  nature  of 
the  instrument.^  Although  costs  may  not  be  given  against  a 
solicitor  who  has  mixed  himself  up  in  a  fraudulent  transaction, 
costs  will  not  be  given  to  him.'  In  Harvey  v.  Mount,^  a 
solicitor  who  acted  as  such  in  a  transaction  which  was  im- 
peachable on  the  ground  of  fraud,  but  was  himself  free  from 


*  Nesbitt  V.  Berridge,  1  N.  R.  345.  •  Moore  v.  Prance,  9  Ha.  303.  See 
'■'Marshall  v.  Sladden,  7  Ha.  444.  Beadles  v.  Burch,  10  Sim.  332;  Ber- 
=>  Elscy  V.  Adama,  2  D.  J.  &  S.  147.  ry  v.   Armitstead,  2   Keen,    227 ;    Gil- 

*  Marshall   v.    bladden,   7   Ha.    443.  bert  v.  Lewis,  1  D.  J.  <fe  S.  52,  supra. 
See  Br  nt  v.  Brent,  10  L.  J.  Ch.  84.  p.  312. 

"  Bennett  v.  Vade,  2  Atk.  324;   Har-  '  Roddy  v.  Williams,  3  J.  <fe  L.  23. 

vey  V.  Mount,  8  Beav.  439.  ^  8  Beav.  439. 


COSTS.  395 

moral  culpability,  was  ordered  to  pay  his  own  costs,  as  lie  bad 
not  acted  with  proper  prudence  in  the  matter.  So,  also,  in 
Fyler  v.  Fyler,^  where  a  solicitor,  by  mixing  up  his  personal 
interest  in  his  client's  transactions,  rendered  an  investigation 
not  unreasonable,  the  bill  was  dismissed  against  him  without 
costs,  though  it  contained  unproven  charges  of  fraud. 

The  costs  of  a  suit  to  set  aside  a  deed  for  fraud,  will  not  be 
given  against  a  solicitor,  or  party  to  the  fraud,  if  they  are  not 
specifically  prayed  by  the  bill.^  If  they  are  not  sj)ecifically 
prayed  by  the  bill,  a  demurrer  will  lie.^ 

If  a  man  be  accessory  to  a  fraud  on  creditors,  as  being  the 
trustee  of  a  voluntary  settlement,  he  will  not  be  allowed  his 
costs  on  setting  aside  the  deed,  although  he  may  have  derived 
no  benefit  from  it.* 

In  a  case  where  the  name  of  a  man  had,  by  the  false  repre- 
sentations of  a  third  party,  been  inserted  on  the  register  of  the 
shareholders  of  a  company,  it  was  held  that  tlie  company, 
though  innocent,  must  bear  the  costs  of  the  application.^ 

The  Consolidated  Orders  38,  r.  2,  reg.  2,  do  not  contem- 
plate the  cause  of  fraud,  so  that,  although  the  value  of  the 
subject-matter  of  the  suit  at  the  time  of  filing  the  bill  may  be 
considerably  less  than  £1,000,  the  costs  will  be  allowed  on  the 
higher  scale  .^ 

'  3  Beav.  550.  *  Townsend  v.   Westacott,   4   Bear. 

"Beadles    v.   Biirch,    10   Sim.    338;       68;  Turquand  t).  Knight,  14  Sim.  64-t. 
Eoddy  V.  Williams,  3  J.  &  L.  16.  ''  Re  Patent  File  Co.,  15  W.  R.  754. 

'  Beadlea  v.  Burch,  10  ISlm.  338,  °  Earl  of  Stamford  v.  Dawaou,  15  W. 

£.  896. 


CHAPTER  II. 

MISTAKE. 

Mistake  is  a  ground  for  relief  in  equity.  Mistake  raay 
be  said  to  be  some  unintentional  act,  omission,  or  error  arising 
from  unconsciousness,  ignorance,  forgetfulness,  imposition,  or 
misplaced  confidence.^  There  is  mistake  if  a  man  through 
ignorance  be  induced  to  do  a  thing  which  he  would  not  have 
done,  had  he  not  been  in  error. ^ 

Mistake  may  be  either  in  matter  of  law  or  in  matter  of 
fact.' 

The  rule  that  mistake  in  matter  of  law  cannot  be  admitted 
as  a  valid  excuse  either  for  doing  an  act  prohibited  by  the  law, 
or  for  the  omission  of  a  duty  which  it  imposes,  is  common  to 
all  systems  of  law.  Regula  est  juris  ignorantiam  cuique 
nocere,  is  the  language  of  the  Pandects.*  Ignorantia  juris 
non  excusat,  is  the  maxim  of  the  common  law.  "  It  is  to  be 
presumed,"  says  Manwood,  as  reported  by  Plowden,^  "  that  no 
subject  of  this  realm  is  miscognizant  of  the  law  whereby  he  is 
governed.  Ignorance  of  the  law  excuseth  none."  ®  The  rule 
is  not  only  expedient,  but  is  absolutely  necessary.  If  igno- 
rance of  law  were  admitted  as  a  ground  of  exemption,  the 
court  would  be  involved  in  questions  which  it  were  scarcely 
possible  to  solve,  and  which  would  render  the  administration 
of  justice  next  to  impracticable,  for  in  almost  every  case  igno- 
rance of  law  would  be  alleged,  and  the  court  would,  for  the 


»  story's  Eq.  Jur.  110.  *  See  Manser's  Case,  2  Co.  Rep.  3  a, 

'Jeremy's  Eq.  Jur.   Bk.   2,  pt.  2,  p.  b;    Cook    v.    Wotton,   4    Leon.    190; 

358.  Stevens  v.  Lynch,  12  East,  38;  Teede 

=  Dig.  Lib.  22,  tit.  6.  v.   Johnson,    11   Exch.   840;   Pooley   v. 

*  Dis.  Lib.  22,  tit.  6,  leg.  9.  Brown,  11  C.  B.  K  6.  566. 
•»  1  Plowd.  342. 


MISTAKE.  397 

purpose  of  determining  the  point,  be  often  compelled  to  enter 
upon  questions  of  fact,  insoluble  and  interminable.^ 

The  rule  is  the  same  in  equity.     Mistake  in  matter  of  law 
cannot  in  general  be  admitted  as  a  ground  of  relief  in  equity.'  * 


'  Austin's  Jur.,  vol.  II,  p.  172.  v.  Duke  of  Devonshire,  16  Beav.  257; . 

'Maiden  v.  Menill,  2  Atk.  8;  Mar-  Teed  v.  Johnson,  25   L.  J.  Exch.  110; 

shall   V.  CoUett,  1  Y.  <fe  C.  232 ;  Denys  Midland  Great  "Western  Co.  of  Ireland 

V.  Shuckburgh,  4  Y.   &  C.  42 ;  Mellers  v.  Johnson,  6  H.  L.  798. 


*  Bank  of  United  States  o.  Daniel,  12  Pet.  33  ;  Hunt  «.  Rousmrmier,  2 
Mason,  342;  s.  c.  1  Pet.  1;  s.  c.  8  Wheat.  174;  McMurray  v.  St.  Louis  &c. 
Co.,  33  Mo.  377  ;  Peters  v.  Florence,  38  Penn.  194 ;  Gwynn  v.  Hamilton, 
29  Ala.  233;  Smith  v.  McDougal,  2  Cal.  586;  State  v.  Rcigart,  1  Gill.  1; 
Dill  t\  Sbahan,  25  Ala.  694 ;  Mellich  v.  Robertson,  25  Vt  603 ;  SLafer  v. 
Davis,  13  HI.  395 ;  Lyon  v.  Sanders,  23  Miss.  530 ;  Gilbert  ®.  Gilbert,  9 
Barb.  532;  McAnincb.  v.  Laughlin,  13  Penn.  371;  Cooper  v.  Crosby,  3 
Gilman,  506;  Hinchman  r.  Emaus,  Saxton,  100;  Drake  v.  Collins,  5  How. 
(Miss.)  253;  Trigg  v.  Read,  5  Humph.  529  ;  Storrs  r.  Barker,  6  Johns.  Ch. 
1(56;  Bryant  v.  Mansfield,  22  Me.  o60 ;  Lyon  v.  Richmond,  2  Johns.  Ch. 
00 ;  Brown  v.  iVrmistead,  6  Rand.  594 ;  Gunter  v.  Thomas,  1  Ired.  Eq. 
195;  Fergerson  v.  Fergerson,  1  Geo.  Decis.  135;  Shotwell  v.  Murray,  1 
Johns.  Ch.  512 ;  Wintermute  v.  Snyder,  2  Green's  Ch.  489 ;  Good  v.  Herr, 
7  W.  &  S.  253 ;  Bell  ®.  Steel,  2  Humph.  148 ;  Pettes'  Bank  v.  AYhitehall, 
17  Vt.  435  ;  Heilbrou  r.  Bissell,  1  Bailey's  Ch.  430 ;  Proctor  t.  Thrall,  22 
Vt.  262;  Dow  r.  Ker,  Spears'  Ch.  413. 

"Where  parties  upon  deliberation  and  advice  reject  one  species  of  in- 
struments, and  agree  to  select  another  under  a  misapprehension  of  law  as 
to  the  nature  of  the  instrument  selected,  a  court  of  equity  will  not  on  the 
ground  of  such  misapprehension,  and  the  insufficiency  of  such  instrument, 
direct  a  new  instrument  of  a  different  character  to  be  ^iven.  Hunt  r.  Rous- 
mauier,  1  Pet.  1;  s.  c.  8  "Wheat.  174;  Broadwell  v.  Broadwell,  1  Gilman, 
599;  Leavitt  t.  Palmer,  3  Comst.  19;  Arthur  v.  Ailhm-,  10  Barb.  9; 
Durant  v.  Durant,  2  Beasley,  201. 

The  fact  that  a  decision  upon  which  the  parties  relied  has  been  sub- 
sequently overruled,  is  no  ground  for  relief.  Kenzon  v.  Weltz,  20  CaL 
637. 

A  mistake  as  to  the  legal  effect  of  a  statute  is  no  ground  for  relief 
State  T.  Paup,  13  Ark.  129. 

A  mistake  in  regard  to  the  existence  of  a  clause  in  the  charter  of  a 
corporation  reserving  the  right  of  appeal,  is  ground  for  relief.  King  v. 
Doolittle,  1  Head.  77. 

When  a  party,  through  his  attorney's  mistake  of  the  law,  has  bound 


398  MISTAKE. 

The  maxim,  juris  ignorantia  non  excusat^  is  not,  liowerer, 
iiniversallj  applicable  in  equity.^  If  the  word  jus  is  used  in 
the  sense  of  denoting  general  law,  the  ordinary  law  of  the 
country,  no  exception  can  be  admitted  to  the  general  applica- 
tion of  the  maxim ;  but  it  is  otherwise  when  the  word  jus  is 
used  in  the  sense  of  denoting  a  private  right.^  If  a  man 
through  misapprehension  or  mistake  of  the  law,  parts  with  or 
gives  up  a  private  right  of  property,  or  assumes  obligations 
upon  grounds  upon  which  he  would  not  have  acted  but  for 
such  misapprehension,  a  court  of  equity  may  grant  relief,  if, 
under  the  general  circumstances  of  the  case,  it  is  satisfied  that 
the  party  benefited  by  the  mistake  cannot  in  conscience  retain 
the  benefit  or  advantage  so  acquired.^ 

'  Naylor  v.  Winch,  1  Sim.  &  St.  555 ;  According  to  the  Roman  law  there 

Watson  V.  Marston,  4  D.  M.  &  G.  230,  were  certain  clnsses  of  persons  "  qulbus 

236  ;  Stone  v.   Godfrey,  5   D.  M.  &  G.  permissam  est  jus  ignorare."'    Dig.  Lib. 

'76,  90.  22,  tit.    6,  leg.   9.     They  were  exempt 

'  Cooper  V.  Phibbs,  L.  R.  2  App.  Ca.  from  liability  (at  least  for  certain  pur- 

\^iO,per  Lord  Westbury.  poses),  nut  by  reason  of  their  general 

'  See  Cann  v.  Cann,  1  P.  Wms.  '72'7 ;  imbecility,  but  because  it  was  presumed 

Pusey  V.  Desbouverie,  3  P.  Wms.  320;  that  their  capacity  is  not  adequate  to  a 

Cocking, V.  Pratt,  1  Ves.  400;  Farewell  knowledge   of   the  law.       Such   were 

V.  Coker,  cit.   2  Mer.  353  ;  Naylor  v  ■women,  soldiers,  and  jDersons  who  had 

Winch,  1   Sim.  &  St.  555 ;  Macartliy  v.  not   reached   the   age   of    twenty-live. 

Decaix,  2  R.  &  M.  614;  Clifton  v.  Cock-  Ignorance   of  law,   considered  per  se, 

burn,  3  jNI.  &  K.  99  ;   Sturge  v.  Sturoe,  was  in  these  cases  considered  a  ground 

12  Beav.  2-9;  Davis  v.  Morier,  2  Coll.  of  exemption.     In  such  cases  it  was 

30s ;  Rejmell  )■.  Sprye,  8  Ila.  222,  255 ;  presumed  from  the  sex,  or  from  the 

Cox  V.  Bruton,  5  W.  R.  544;  Stone  «.  age,  or  from  the  profession  of  the  party, 

Godfrey,  18  Jur.  162  ;  Cooper  v.  Phibbs,  that  the  part}-  was  ignorant  of  the  law, 

17   Ir.  Ch.  82 ;  D'Aguesseau,  vol.  IX,  and  that  the  ignorance  was  inevitable, 

p.  629;  TpuUier's  Cod.  Civ.   Liv.  Ill,  Austin's  Jur,  vol.  II,  p.  174.    The  per- 

tit.  3,  c.  2,  §62;  Larombiere,  Theorie  sons,"  ijulbus  pcnnist^um  est  jus  umorare" 

des  Oblig.,  vol.  I,  pp.  43,  57.    The  mis-  could  nut,  however,  allege  with  effect 

apprehension  of  rights  under  a  deed,  their  ignorance  of  the  law  in  case  they 

not  arising  from  the  misconstruction  of  violated  those  parts  of  it  which  were 

the  deed,  is,  it  has  been  said,  a  mistake  founded  on  the  jus  gentmm.     For  the 

in  fact ;  and  is  consequently  relievable  persons  in  question  are  not  generally 

ia  equity.     Denya  v.  Shuckburgh,  4  Y.  imbecile,    and   the    jus    gentnim   was 

<fe  C.  42.  'kQ.owahl&iialuiali  rati  one.  With  regard 


himself  farther  than  he  wa3  legally  liable,  he  may  in  a  proper  case  obtain 
relief.  Fitzgerald  v.  Peck,  4  Litt.  125 ;  contra^  Magniac  v.  Thomson,  3 
Wall.  Jr.  209. 

A  party  hai-ing  constructive  though  not  actual  notice  of  judgments 
over  wliicli  he  has  priority  by  virtue  of  a  mortgage,  and  taking  an  as- 


MISTAKE. 


399 


Mistake  in  law,  to  be  a  ground  for  relief  in  equity,  must 
be  of  a  material  nature,  and  tlie  determining  ground  of  the 
transaction.* 

Mistake  of  law  may  be  a  misapprebension  of  the  law,  or 
of  their  private  rights  to  property  by  both  parties  to  a  trans- 
action, both  of  them  making  substantially  the  same  mistake  ; 
or  it  may  be  a  misapprehension  of  the  law  or  of  his  private 
right  by  one  of  the  parties  alone. 

If  an  agreement  be  entered  into  between  two  parties  in 
mutual  mistake  as  to  their  relative  and  respective  rights, 
either  of  these  is  entitled  to  have  it  set  aside.^  Where,  for 
instance^  a  party  entered  into  an  agreement  with  another  to 
take  a  lease  of  what  in  fact  was  his  own  property,  both  parties 
being  under  a  common  mistake  as  to  their  respective  rights, 
the  transaction  was  set  aside.^    So  also  where  a  man  had  sold 

to  the  jvs  civile,  or  to  those  parts  of  '  Stone  v.  Godfrey,  5  D.  M.  &  G.  76, 

the  Roman  law  wliich  were  peculiar  to  infra,  p.  340.  -r    t^   «  .         r^ 

the  system,  they  might  allege  with  ef-  ^  Cooper  v.  Phibbs,  L.  R.  2  App.  Ca, 

feet  their   ignorance  of  the   law.     Au-  149. 


stin's  Jm-.,  vol.   II,  p.   lib;  see  Liudl. 
on  Jur.,  p.  24 


lb. 


Bignment  of  the  equity  of  redemption,  and  thereby  merging  the  mortgage, 
acts  under  a  mistake  as  to  his  legal  rights,  and  can  not  have  relief. 
Campbell  v.  Carter,  14  HI.  286. 

The  presumption  that  every  man  knows  the  law,  may  be  rebutted  by 
proof,  and  relief  granted  against  a  mistake  of  the  law.  Evarts  v.  Strode, 
11  Ohio,  480. 

Where  the  legal  principle  is  confessedly  doubtful  and  one  about 
which  ignorance  may  well  be  supposed  to  exist,  a  person,  acting  under  a 
misappr'^ehension  of  the  law,  will  not  forfeit  any  of  his  legal  rights  by 
reason  of  such  mistake.  Lammott  v.  Bowly,  6  G.  &  J.  500  ;  Cumberland 
Coal  Co.  r.  Sherman,  20  Md.  117  ;  Champlin  v.  Laytin,  10  Wend.  407;  s. 
c,  1  Edw.  Ch.  467  ;  s  c.  6  Paige,  189;  Garner  v.  Garner,  1  Dessau.  437; 
Lowndes  v.  Chisolm,  2  McCord's  Ch.  435;  Mortimer  v.  Pritchard,  1  Bai- 
ley's Ch.  505;  Freeman  v.  Curtis,  51  Me.  140;  Jordan  v.  Stevens,  51  Me. 
78;  Moreland  v.  Atchinson,  19  Tex.  303  ;  Green  v.  Morris  &c.  R.  U.  Co.,  1 
Beasley,  105 ;  Iludon  v.  Ware,  15  Ala.  149  ;  Cooke  v.  Nathan,  16  Barb. 
342  ;  Reservoir  Co.  v.  Chase,  14  Ct.  123. 


400  MISTAKE. 

anotlier  an  estate  wliicli  in  triitli  belonged  to  him,  equity  will 
order  the  purchase-moneys  to  be  refunded.^  So  also  where  the 
second  of  three  brothers  having  died,  the  eldest,  who  had 
entered  upon  his  deceased  brother's  share,  agreed  to  divide  it 
with  his  youngest  brother,  upon  the  representation  of  a  third 
party  whom  the  two  brothers  had  consulted,  that,  as  land 
could  not  ascend,  the  youngest  brother  was  heir  to  the  second, 
and  executed  a  conveyance  accordingly.  Lord  King  relieved 
the  eldest  brother  against  the  instrument.^ 

If  the  mistake  of  law,  or  as  to  his  private  right  be  that  of 
one  party  only  to  a  transaction,  it  may  be  either  that  the  mis- 
take was  induced  or  encouraged  by  the  misrepresentation  of 
the  other  party,  or  that,  though  not  so  induced  or  encouraged, 
it  was  known  to  and  perceived  by  him,  and  was  taken  advan- 
tage of,  or  it  may  be  that  he  was  not  aware  of  mistake.  Wiiat- 
ever  may  be  circumstances  of  the  case,  a  court  of  equity  may, 
under  the  peculiar  circumstances  of  the  case,  grant  relief.* 
But  if  it  appear  that  the  mistake  was  induced  or  encouraged 
by  the  misrepresentation  of  the  other  party  to  the  transaction,^ 

^  Bingham  v.  Bingham,  1  Ves.  126.  '  Scholfield  v.  Terapler,  John.  166; 

"  Lansdowne    v.    Lansdowne,   Mose.       Cooper  v.  Phibbs,  L.  R    2 ;  App.  Ca. 
864;  cit.  2  J.  <fe  W.  205.  149,  supra,  pp.  12,  48. 


*  Skillman  v.  Teeple,  Saxton,  233 ;  Bigelow  v.  Barr,  4  Ohio,  358;  "Wil- 
liams T.  Champion,  6  Ohio,  1G9;  Sparks  v.  White,?  Humph.  86;  Lawrence 
V.  Beaubien,  2  Bailey,  623. 

When  a  contract  is  made  in  ignorance  of  the  existence  of  any  right  or 
title  in  the  party,  it  may  be  set  aside.  So  also  if  it  is  made  with  the 
knowledge  of  the  existence  of  some  right,  but  in  ignorance  of  any  material 
fact  aiiecting  the  matter  or  value  of  the  right  or  title,  essential  to  the 
character  of  the  contract  and  an  efficient  cause  in  its  concoction.  Trigg 
r.  Read,  5  Humph.  529. 

The  case  in  which  an  interference  would  be  proper  where  a  party  has 
entered  into  an  agreement  under  a  mistake  in  regard  to  the  construction 
of  an  instrument  upon  which  his  rights  depended,  must  show  a  very 
plain  clear  mistake.  Winterniute  v.  Snyder,  2  Green's  Ch.  489  ;  Dupre  v. 
Thompson,  4  Barb.  279  ;  Clayton  v.  Bumey,  30  Geo.  946  ;  Burt  v.  Wilson, 
28  Cal.  633. 


MISTAKE.  401 

or  was  perceived  by  liim  and  taken  advantage  of,  tlie  court 
will  be  more  disposed  to  grant  relief  than  in  cases  where  it 
does   not   appear   that   he   was   aware   of  the   mistake.^     In 
Broug-hton  v.  Hutt,=^  where  the  heir-at-law  of  a  shareholder  in 
a  company,  the  shares  in  which  were  personal  estate,  suppos- 
ing himself,  through  ignorance  of  law,  to  be  liable  in  respect 
of  the  shares,  had  executed  a  deed  taking  the  liability  on  him- 
self, it  was  held  that  he  was  entitled  to  have  the  deed  can- 
celled.    So  also  where  a  man  having  a  legal  security  gave  it 
lip  in  exchange  for  another  security,  upon  the  faith  that  the 
right  which  he  gave  up  would  be  secured  to  him  by  the  sub- 
stituted -  security,  but  the  substituted  security  proved  to  be  a 
mere  nullity  in  law,  relief  was  given.^    So  also  where  a  woman 
renewed  a  note,  believing  that  she  was  liable  on  the  original 
note,  relief  was  given/     So  also  where  a  sister,  being  ignorant 
of  her  rights  under  a   settlement,  released  her  rights   to  a 
brother,  the  release  was  held  not  binding  on  her.^     So  also 
where  the  daughter  of  a  freeman  of  London  accepted  of  a 
legacy  left  her  by  her  father,  and  released  her  orphanage  part 
according  to  the  custom  of  London,   and  it  did  not  appear, 
though  she  was  told  she  might  elect  between  the  legacy  and  the 
orphanage  part,  that  she  knew  she  had  a  right  to  inquire  into 
the  value  of  the  personal  estate  and  the  quantum  of  the  orphan- 
age part  before  making  her  election,  the  release  was  set  aside.* 
The  same  considerations  should,  it  would  seem,  apply  to 
the  case  of  the  payment  of  money  under  a  mistake  of  law;' 
but  it  appears  from  the  authorities  to  be  established  in  equity 
as  well  as  at  law,  that  money  paid  under  a  mistake  of  law,  with 

'  Cocking    V.    Pratt,    1    Ves,     400 ;  v.  Spencer,  1  Vern.   32 ;    Mildmay  v 

M'Carty  v.   Docaix,   2  R.  &  M.   614 ;  Hunserford,  2  Vern.  243. 

Sturge     V.    Sturge,     1 2    Beav.    229  ;  *  Coward  v.  Hughes,  1  K.  &  J.  443. 

Broughton  v.  Hutt,  3   D.  <fe  J.  501 ;  see  '  Ramsden  v.  Hylton,  2  Ves.  304. 

Worsley  v.  Frank,  11  L.  T.  392.  *  Pusey  v.  Desbouvcrie,  8  P.  W.  315. 

"  3  I).  <fe  J.  501.  '  See  Clifton  v.  Cockburn,  3  M.  &  K. 

*  lie  Saxon  Life  Assurance  Co.,  2  J,  99  ;  Davis  v.  Moricr,  2  Coll.  308 ;  Cooper 

A  H.  408;  1  D.  J.  <fe  S.  29.     See  Gee  v.  Pliibbs,  17  Ir.  Ch.  82. 


402  MISTAKE. 

full  knowledge  of  the  facts,  is  not  recoverable,  and  that  even 
a  promise  to  pay,  upon  a  supposed  liability,  and  in  igno- 
rance of  the  law,  will  bind  the  party .^  *  But  the  rule  is  liable 
to  a  qualification,  if  the  man  to  whom  money  has  been  paid 
has  been  accessory  to  the  error  of  the  other  party,  or  has  got 
some  one  to  misinform  him  of  the  law.^  If  the  law  mistaken 
is  the  law  of  a  foreign  state,  the  mistake  is  regarded  as  a  mis- 
take of  fact.' 

In  Davis  v.  Morier,*  where  a  person  had  by  mistake  re- 
ceived for  some  years  a  less  income  than  he  was  entitled  to 
under  a  marriage  settlement,  it  was  held  that  he  was  under  the 
circumstances  of  the  case  entitled  to  have  the  difference  paid 
to  him  out  of  the  estate  of  the  deceased  settler. 

^  Bilbie  v.  Lumley,  2  East,  469  ;  Ste-  lowed  out  of  the  subsequent  payments. 

vens  V.  Lynch,  12  East,  38 ;  Brisbane  v.  Nicholls  v.  Lesson,  3  Atk.  573.    So,  also, 

Dacres,  5  Taunt.  143  ;  Goodman  v.  Say-  where  an  executoi-  had  paid  interest  for 

ers,  2  J.  (fe  W.  263 ;  Currie  v.  Goold,  2  seventeen  years  without  deducting  the 

Madd.  163;  Drewry  v.  Barnes,  3  Russ.  property-tax,  it  was  held  he  could  not 

94  ;  Webb  v.  Brookes,  1  L.  J,  Ch.  N.  S.  afterwards  deduct  out  of  the  future  in- 

191 ;    Great   Western   Railway   Co.  v.  terests  due  the  amount  of  property-tax 

Cripps,  5  Ha.  91 ;  Piatt  v.  Bromage,  24  on  such  precedent  payments.     Currie  v. 

L.  J.  Exch.  63;   Bate  v.  Hooper,  5  D.  Goold,  2  Madd.  163. 

M.  &  G.  338;  Stafford  v.  Stafford,  1  D.  ^  Dixons  v.  Monkland  Canal,  5  Wills. 

&  J.  197;   Saltmarshe  v.  Barrett,  31   L.  &  Sh.  Sc.  Ap.  445 

J.  Ch.  783.    Se  •  Moore  v.  Moore,  1  Coll.  ^  Haven  v.   Foster,   9   Pick.  (Amer.) 

64.    Where  money   had  been   paid  for  112.     See  Leslie «/.  Baillie,  2  Y.  <fe  C.  C. 

many  years  without  deducting  the  land-  C.  91. 

tax,    no  deduction  was  afterwards  al-  ■*  2  Coll.  303. 


*  Elliott  V.  Swartout,  10  Pet.  137;  Bank  of  United  States  v.  Daniel,  13 
Pet.  32;  Haven  v.  Foster,  9  Pick.  112;  Wheaton  «.  Wlieaton,  9  Ct.  96; 
PinkLam  r.  Gear,  3  N.  H.  163;  Hubbard  v.  Martin,  8  Yerg.  498;  Ege  ». 
Koontz,  3  Barr,  109;  Jones  v.  Watkins,  1  Stew.  81;  Lyou  ®.  Talkaadge, 
14  Jolins.  526 ;  Clark  i\  Dutcher,  9  Cow.  674. 

When  money  is  paid  by  one  under  a  mistake  of  his  rights  and  his 
duty,  and  which  he  was  under  no  legal  or  moral  obligation  to  pay,  and 
which  the  recipient  has  no  right  in  good  conscience  to  retain,  it  may  be 
recovered  back  whether  such  mistake  be  one  of  law  or  of  fact.  Northrop 
V.  Graves,  19  Ct.  548. 

Payment  by  an  administrator  under  a  mistake  of  law  to  a  person  not 
entitled,  does  not  relieve  him  from  liability,  although  the  party  really  en- 
titled knew  of  the  payment  and  made  no  objection.  Davis  v.  Bayley,  40 
Geo.  181. 


MISTAKE.  403 

Whether  money  paid  under  mistake  of  law  can  be  reclaimed 
is  a  subject  which  has  led  to  much  difference  of  opinion  among 
civilians  and  the  commentators  on  the  Roman  law.  The  old 
school  of  lawyers  were  of  opinion  that  money  paid  under  mis- 
take of  law  might  be  recovered  back.  But  Cujas  maintained 
an  opposite  opinion,  and  he  was  followed  by  Pothier  and 
others  ;  Yinnius,  however,  Iluber  and  D'Aguesseau  supported 
the  doctrine  of  the  earlier  school.^  The  framers  of  the  Code 
]!!^apoleon  adopted  their  opinion,  and  declared,  in  general  terms, 
that  money  paid  under  mistake  may  be  recovered  back,  making 
no  distinction,  in  this  respect,  between  mistake  of  law  and  mis- 
take of  fact.'  The  earlier  authorities  on  the  Scottish  law  are 
in  favor  of  the  doctrine  that  money  paid  under  mistake  of  law 
may  be  recovered  back.^  In  two  cases,  however,*  Lord 
Brougham  laid  it  down  that  at  Scotch  law  money  paid  under 
mistake  of  law  is  not  recoverable.  But  there  is  much  reason 
to  doubt  whether  the  rule  so  laid  down  by  him  can  be  accepted 
as  a  sound  exposition  of  the  Scotch  law.  His  judgment  was 
founded  solely  on  two  English  common-law  authorities.® 

Mistake  in  law  is  not  a  ground  for  setting  aside  a  compro- 
mise, if  the  parties  to  the  transaction  were  in  difficulty  and 
doubt,  and  wished  to  put  an  end  to  disputes,  and  to  terminate 
or  avoid  litigation.  If  one  or  more  parties,  having,  or  sup- 
posing they  have,  claims  upon  a  given  subject  matter,  or  claims 
against  each  other,  agree  to  compromise  these  claims,  and  the 
knowledge,  or  means  of  knowledge,  of  each  of  them  with 
respect  to  the  mode  in  which,  and  the  circumstances  under 
which,  his  claim  arises,  stand  upon  an  equal  footing,  and  there 
is  an  absence  of  fraud  or  misrepresentation,  the  transaction  is 


'  See    Pothier,    Obi.    translatod    by  398 ;  Dixons  v.  Monldand  Canal  Co.,  5 

Evans,  App.  vol.  II,  pp.  408-437.  "Wills.  &  Sh.  445. 

'  Co:l.  Civ.  1377.  *  liilbie  v.  Lumlej',  2  East,  409 ;  Bris- 

'  Mor.  Diet.  Dec.  2930,  2931.  bane  v.  Dacies,  5  Taunt.  143. 
*  Wilson  V.  iSiuclair,  4  Wills.  &  Sh. 


404  MISTAKE. 

binding,  although,  the  conclusion  at  which  the  parties  may  have 
arrived  is  not  that  which  a  court  of  justice  would  have  arrived 
at  had  its  decision  been  sought.  The  real  consideration  which 
each  party  receives  under  a  compromise  being,  not  the  sacrifice 
of  the  right,  but  the  settlement  of  the  dispute,  and  the  aban- 
donment of  the  claim,  it  is  no  objection  to  the  validity  of  the 
transaction  that  the  right  was  really  in  one  of  the  parties  only, 
and  that  the  others  had  no  right  whatever.  If,  for  instance, 
two  parties  claim  adversely  to  each  other  the  inheritance  of  a 
deceased  person,  and,  in  order  to  avoid  litigation,  agree  to 
divide  the  inheritance,  it  is  no  ground  for  setting  aside  the 
agreement  that  only  one  was  heir,  and  that  the  other  gave  up 
the  right  which  he  really  possessed.  The  fact  that  the  one  may 
have  had  no  claim  is  immaterial,  if  he  was  honestly  mistaken 
as  to  his  claim.  It  is  enough  if  at  the  time  of  the  compromise 
he  may  have  believed  he  had  a  claim,  and  that  the  parties  have, 
by  the  transaction,  avoided  the  necessity  of  goiug  to  law.*  * 
To  render  valid  the  compromise  of  a  litigation,  it  is  not  even 
necessary  that  the  question  in  dispute  should  really  be  doubt- 
ful, if  the  parties  hond  fide  consider  it  to  be  so.  It  is  enough 
to  render  a  .compromise  valid,  that  there  is  a  question  to  be 
decided  between  them.^  A  compromise  of  doubtful  rights  will 
not  be  set  aside  on  any  other  ground  than  fraud.^ 

'  Stapilton  v.   Stapilton,  1  Atk.  10 ;  8T ;  Partridge  v.  Stephens,  9  Jur.  N.  S. 

Gordon  v.  Gordon,  3  S\v.  463;   Leonard  '742;  Trig^e  v.  Lavallee,  15  Moo.  P.  C. 

V.  Leonard,  2  Ba.  <fc  Be.  179;  ivaylor  t).  2T0;  Bullock  v.  Downes,   9  H.  L.    1; 

Wincli,  1  Sim.  &  St.  553,  Y  L.  J.  Ch.  6;  1;   Brooke  v.   Lord  Mostyn,  2  D.  J.  «fe 

Harvey  v.  Cooke,  4  Kuss.  34 ;  Attwood  S.  373 ;  Lord  Belhaven's  Case,  3  D.  J. 

y. ,  5  Russ.  149  ;  Stewart  v.  Stew-  «fe  S.  41. 

art,  6  CI.  &  Fin.  969  ;  Pickering  v.  Pick-  "  Ex-parte  Lucy,  4  D.   M.   &  G.  356. 

erino-,  2  Beav.  56  ,  Reynell  v.  Sprye,  8  See  Neale  v.  Neale,  1  Keen,  672. 
Ha.  ^222,  254 ;  Ex-parte  Lucy,  4  D.  M.  '  Brooke  v.  Lord  Mostyn,  2  D.  J.  <b 

<fe  G.  356;  Lawton  v.  Campion,  18  Beav.  S.  373,  supra,  pp,  79,  80. 


*  A  compromise  made  under  a  mistake  of  law  may  be  set  aside  if  there 
is  undue  influence.     "Wheeler  v.  Smith,  9  How.  55. 

A  compromise  made  under  a  mutual  mistake  of  fact  may  be  set  aside. 
Nabours  v.  Cocke,  24  Miss.  44. 


MISTAKE.  405 

Tlie  jurisdiction  of  equity  over  mistake  is  exercised  mucli 
more  liberally  where  the  mistake  is  iu  matter  of  fact,  than 
where  it  is  in  matter  of  law.  The  admission  of  ignorance  of 
fact  as  a  ground  of  relief,  is  not  attended  with  those  incon- 
veniences which  seem  to  be  the  reason  for  rejecting  ignorance 
of  law  as  a  valid  excuse.  Whether  the  ignorance  really  existed, 
and  whether  it  was  imputable  or  not  to  the  inadvertence  of  the 
party,  is  a  question  which  may  be  solved  by  looking  at  the 
circumstance  of  the  case.  The  inquiry  is  limited  to  a  given 
incident,  and  to  the  circumstances  attending  that  incident,  and 
is,  therefore,  not  interminable.'^* 

According  to  Savigny,  ignorance  has  not,  as  such,  any 
effect  upon  the  legal  consequences  of  an  act  or  transaction  in 
which  it  occurs.  The  effect  gensrally  attributed  to  ignorance 
is  properly  attributable  to  the  negligence  which  is  the  cause  of 
it.  Ignorance  which  is  not  the  effect  of  gross  negligence  is  not 
prejudicial  to  the  ignorant  party,  but  ignorance  which  is  the 
effect  of  such  negligence  is  prejudicial  to  him.  "Whether  ig- 
norance be  or  be  not  the  result  of  gross  negligence,  depends  on 

'  Austin  Jur.  vol.  II.  p.  1*72. 


*  Kctchnm  v.  Catlin,  21  Vt.  191 ;  Wheadon  v.  Olds,  2  Wend.  174  ;  Mer- 
chants' Bank  v.  Mclntyre,  2  Sandf.  431 ;  Miles  v.  S  .evens,  3  Barr.  21. 

No  person  can  be  presumed  to  be  acquainted  with  all  matters  of  fact, 
nor  is  it  possible  by  any  degree  of  vigilance  in  all  cases  to  acquii-e  that 
knowledge;  and  for  this  reason  a  court  of  equity  is  liberal  in  granting  re- 
lief to  prevent  injustice  where  the  party  asking  it  cannot  be  charged  with 
culpable  negligence.     Jenks  v.  Fritz,  7  W.  &  S.  201. 

A  court  of  equity  will  relieve  against  a  material  mistake  as  to  the 
quantity  of  land  purporting  to  be  conveyed  by  a  deed.  "Wiley  v.  Fitz- 
patrick,  3  J.  J.  Marsh.  552 ;  Crane  v.  Prather,  4  J.  J.  Marsh.  75. 

When  the  contract  is  for  a  definite  quantity,  and  the  vendor  makes  a 
mistake  as  to  the  mode  of  measurement,  there  can  be  no  relief  by  injunc- 
tion against  the  greater  use,  although  the  vendee  was  under  the  same  mis- 
apprehension.   McKelway  v.  Cook,  3  Green's  Ch.  103. 

When  a  skilliul  parson,  in  the  performance  of  a  mere  ministerial  duty, 
makes  an  error  in  the  admeasurement  of  land,  tiie  mistake  may  be  corrected. 
Jenks  r.  Fritz,  7  W.  &  S.  201;  Whalcy  y.  Elliott,  1  A.  K.  Marsh.  343; 
Gilmore  v.  Morgan,  2  J.  J.  Marsh.  65. 


400  MISTAKE. 

circumstances ;  it  is  presumed  to  be  so  when  a  man  is  ignorant 
of  the  general  laws  of  his  country,  or  of  his  own  affairs,  but  it 
is  not  so  presumed  when  he  is  iguoraat  of  other  matters.  The 
presumption  which  arises  in  each  of  these  cases  is  rebuttable, 
but  is  conclusive  if  not  rebutted  by  the  person  against  whom 
it  arises.  Ignorance  of  matters  of  law  and  ignorance  of  mat- 
ters  of  fact,  are  thus  placed  on  the  same  footing ;  both  are  pre- 
judicial when  the  result  of  gross  negligence ;  both  are  harm- 
less when  not  so.^ 

Mistake  of  fact  is  a  mistake  not  caused  by  the  neglect  of 
legal  duty  on  the  part  of  the  person  making  the  mistake,^ 
and  consisting  in  an  unconsciousness,^  ignorance,*  or  forgetful- 
ness^  of  a  fact  past^  or  present,'^  material  to  the  transaction ;  or 
in  the  belief  in  the  present  existence  of  a  thing  material  to  the 
transaction,  which  does  not  exist,^  or  in  the  past  existence  of  a 
thing  which  has  not  existed.^ 

In  "  fraud,"  as  distinguished  from  "  mistake,"  there  is,  ne- 
cessarily, a  misapprehension  or  mistake  in  the  party  defrauded, 
which  alone  would  not  vitiate  his  dealings  with  others ;  but 
there  is  the  additional  circumstance  that  the  party  with  whom 
he  deals  intentionally  causes  the  mistake  for  the  purpose  of 
effecting  the  dealing,  and  this  precludes  the  party  so  occasion- 
incr  the  mistake  from  holdins;  the  other  bound  to  it.^'^ 

What  is  the  nature  or  degree  of  mistake  which  is  relievable 
in  equity,  as  distinguished  from  mistake  which  is  due  to  negli- 


'LindleyonJur.  App.  p.  19.  275;    "Willan  v.  'Willan,  16   Ves.   72; 

»  New  York  Civil  Code,  Art.  762.  M'Carthy  v.  Decaix,  2  R.  <fe  M.  614. 

'  See  Kelly  v.  Solari,  9  M.  &  W.  54.  '  See  Cocking  v.  Pratt,  1  Ves.  400 ; 

*  See  Cocking  v.  Pratt,  1  Ves.  400;  Hore  «^.  Becher,  12  Sim.  465;  Coiyer  «. 
East  India  Co.  v.  Neave,  5  Ves.  173;  Clay,  7  Beav.  188;  Broughton  v.  Hutt, 
East  India  Co.  v.  Donald,  9  Ves.  275 ;  3  D.  <fe  J.  501. 

Hore  V.   Becher,   12  Sim.  465;  Bell  v.  *  See  Hitchcock  v.  Giddings,  4  Pri. 

Gardiner,  4  M.  &  G.  11.  135;  Colj^er  v.  Clav,  7  Beav.  188;  Has. 

'Kelly  V.  Solari,  9  M.  &  W.  54;'Lu  tie  v.  Couturier,  g^Exch.  102  ;  5  H.  L. 

cas  V.  Worswick,  1  Moo.  <fe  R.  293.  673;  Strickland  v.  Turner,  7  Exch.  208; 

•  See  East  India  Co.  v.  Neave,  5  Ves,  Cochrane  v.  Willis,  L.  R.  1  Ch.  App.  58- 
173;  East  India  Co.  v.  Donald,  9  Ves.  *  See  New  York  Civil  Code,  Art.  762 

'•  Leake  on  Contracts,  182. 


MISTAKE.  407 

geiice,*  and  therefore  not  relievable,  cannot  well  be  defined  so 
as  to  establish  a  general  rule,  and  must,  in  a  great  measure,  de- 
pend on  the  discretion  of  the  court  under  all  the  circumstances 
of  the  case.  Though  a  court  of  equity  will  relieve  against 
mistake,  it  will  not  assist  a  man  whose  condition  is  attributable 
only  to  that  want  of  due  diligence  which  maybe  fairly  expected 
from  a  reasonable  person.^  *  Parties,  for  instance,  who,  having 
a  good  defence,  or  plain  and  complete  remedy  at  law,  have 
neglected  to  avail  themselves  of  it  there,  cannot  come  to  equity 
for  relief.^  Nor  has  a  purchaser  who  is  evicted  by  reason  of  a 
defect  in  title,  which  his  legal  adviser  has  overlooked,  an  equity 
to  recover  his  purchase  money/  Nor  can  relief  be  had  against 
a  forfeiture,  where  a  man  who  is  charged  with  a  legal  obliga- 
tion neglects  to  perform  it.^  So  also  where  a  sum  of  money 
was  paid  by  the  purchaser  of  an  estate  to  persons  supposed  to 
be  entitled  in  remainder,  to  procure  their  concurrence  in  a 
recovery,  which  was  suffered  accordingly,  Lord  Nottingham 
refused  to  direct  the  money  to  be  refunded.^ 


^  Supra, -pp.  93,94.    Facti  ignorantia  key  w.  Vernon,  2  Cox,  12;  Stevens  v. 

ita  demum  cuique  non  nocet,  si  uon  ei  PraeJ,  2  Ves.  Jr.  529 ;  Batemau  v.  Will 

Bumma    negligentia     objiciatur.     Quid  loe,  1  Sch.  &   Lef.   201 ;  Hare  v.  Har- 

enim   si   omnes  in  civitate  sciant  quod  wood,  14  Ves.  31 ;  Drewrj-  v.  Barnes  3 

ille  solus  ignorat.     Dig.  Lib.  22,  tit,  6,  Russ.  94.     See  Marquis  of  Breadalba'ne 

1.  9.  V.  Marquis  of  Chandos,  2  M.  &  C.  719; 

*  Duke  of  Beaufort  v.  Neeld,  12  CI.  &  Henderson  v.  Cook,  4  Drew.  306. 

Fin.  218,  286;  Leuty  v.  Hillas,  2  D.  <fe  *  Urmston  v.  Pate,  3  Ves.  235,  n.    See 

J.  110;  Wild  V.  Hillas,  18  L.  J.  Ch.  ITO.  Cator  v.  Lord  Pembroke,   1  Bro.   C.  C. 

See  Trigge  v.  LavaUee,  15  Moo.  P.  C.  301 ;  2  Bro.  C.  C.  282 ;  Thomas  v.  Pow- 

270.  ell,  2  Cox,  394. 

'  Stephenson  v.  Wilson,  2  Vern.  325 ;  ^  Gregory  v.  Wilson,  9  Ha.  683,  689. 

Blackhall  v.  Coombs,  2  P.  W.  70;  Hoi-  '  Maynard  v.  Moseley,  3  Sw.  651. 
worthy  v.  Mortlock,  1  Cox,  141 ;  Han- 


*  Western  R.  R.  Co.  v.  Babcock,  8  Met.  346  ;  Ferson  v.  Sanger,  1  Wood 

&  Min.   138;  Wood  v.  Patterson,  4  Md.  Ch.  335;  Capebart  t-.  Moon,   3 

Jones'  Eq.  178 ;  Diman  v.  Providence  «fec.  R.  R.  Co.,  5  R.  I.  130 ;  Lamb  v. 

Harris,  8  Geo.  546. 

I         Where  the  means  of  inqiiiiy  are  equally  open  to  both  parties,  if  a  mis- 

I    take  occur  without  any  fraud  or  falsehood,  no  relief  can  be  granted  on 

^    account  of  the  mistake  alone.     Daniel  t.  Mitchell,  1  Story,  173;  Warner 


408  MISTAKE. 

Mistake  in  matter  of  law  or  matter  of  fact,  to  be  a  ground 
for  equitable  relief,  must  be  of  a  material  nature,  and  must  be 
the  determining  ground  of  tlie  transaction.  A  man  who  seeks 
relief  against  mistake,  must  be  able  to  satisfy  the  court  that 
his  conduct  has  been  determined  by  the  mistake.  Mistake  in 
matters  which  are  only  ineideutal  to,  and  are  not  of  the  essence 
of  a  transaction,  and  without,  or  in  the  absence  of  which  it  is 
reasonable  to  infer  that  the  transaction  would  nevertheless  have 
taken  place,  goes  for  nothing.*  If  the  mistake  has  not  been 
the  only  cause  by  which  the  conduct  of  a  man  has  been  in- 
duced, but  another  motive  has  intervened,  the  mistake  cannot 
be  set  up  as  a  ground  for  relief.^  Nor,  indeed,  does  the  cir- 
cumstance that  the  mistake  may  be  in  a  material  matter  always 
of  itself  entitle  a  man  to  the  interposition  of  the  court.  The 
law  does  not  go  the  length  of  requiring  that  parties  who  deal 
with  each  other  at  arms'  length,  should  be  on  the  same  level  as 
to  information  and  knowledge.  If  parties  stand  upon  an  equal 
footing,  and  the  means  of  information  and  knowledge  are  open 
to  them  both,  either  of  them  is  entitled  to  the  benefit  of  his 
own  judgment,  skill,  and  sagacity.  If  the  parties  act  other- 
wise fairly  in  the  transaction,  and  it  is  not  a  case  in  which  one 
of  them  is  bound,  upon  the  ground  of  confideuce,  or  other- 

>  Stone  V.  Godfrey,  5  D.  M.  &  G.  76 ;  1 ;  Domat.  Liv.  1,  tit.  18,  sec.  1,  art, 

Carpniiiel  v.  Fowis,  10  Beav.  39;  Trigge  13-17  ;  Toull.  Cod.  Civ.  Liv.  3,  c,  2,  s, 

V.  Lavalli'>e,  15   Moo.  P.    C.  276.     See  2,  art.  1-4. 
Poth.  Oblig.  part  1,  c.  1,  s.   1,  art.  3,  s. 


V.  Daniels,  1  Wood  &  Min.  90  ;  Hill  v.  Busb,  19  Ark.  523;  Jouziu  v.  Toul- 
inin,  9  Ala.  662. 

A  misunderstanding  between  a  party  and  his  attoraey  resulting  in  a 
failure  to  file  a  plea,  is  gross  negligence,  and  not  good  ground  for  relief. 
Kite  V.  Lumpkin,  40  Geo.  506. 

*  MTerran  v.  Taylor,  3  Cranch,  268  ;  Weaver  v.  Carter,  10  Leigh,  37; 
Sefur  t).  Fingley,  11  Ct.  134;  Trigg  v.  Read,  5  Humph.  529;  Harrod  ». 
Cowan,  Hardin,  543. 

A  mutual  mistake  in  regard  to  the  title  to  property  is  a  ground  foi 
rescinding  a  contract.     Haddock  v.  Williams,  10  Vt.  570. 


MISTAKE.  409 

wise,  to  make  a  disclosure  to  the  other  of  matters  affecting  the 
subject-matter  in  respect  of  which  they  are  dealing,  the  court 
will  not  interfere.  A  man  cannot  have  relief  on  the  ground 
of  mistake,  unless  the  party  benefited  by  the  mistake  is 
disentitled  in  equity  and  conscience  from  retaining  the  advan- 
tage which  he  has  acquired.^  * 

Mistake  of  fact  may  be  the  mistake  of  one  party  only  to  a 
contract,  or  there  may  be  a  mistake  of  both  parties  respecting 
the  same  matter;  and  thus  there  arise  two  different  conditions 
of  the  questions,  which  are  governed  by  considerations  of  a 
different  character. 

The  mistake  of  one  party  only  is  attended  by  different 
consequences,  accordingly  as  the  other  party  is  or  is  not 
cognizant  of  the  mistake. 

The  law  judges  of  an  agreement  between  two  persons 
exclusively  from  those  expressions  of  their  intention,  which 
are  communicated  between  them ;  consequently,  an  agreement 
cannot  be  affected  by  the  mistake  of  either  party  in  expressing 
his  intention,  or  in  his  motives,  of  which  the  other  party  has 
no  knowledge ;  and  the  party  who  has  entered  into  an  agree- 
ment  under  such  a  mistake,  is  bound  by  the  agreement 
actually  made,  and  cannot  assert  his  mistake  in  avoidance  of 
the  agreement  at  law,^  or  in  equity.^  f 

^  1  Fonb.  Eq.  B.  1,  c.  2,  §  T;   Story  '^  Leake  on  Contracts,  168. 

Eq.  Jur.  14*7,  151 ;  Warner  V.  Daniels,  'See    Stapylton   v.    Scott,    13   Vesw 

1  Wood  &  Min.  (Amer.)  90,  supra,  pp.  427 ;  Alvanley  v.  Kinnaird,  2  Mac.  & 

53,  54,  57.  G.  V ;  Cox  v.  Bruton,  5  W.  R.  544. 


*  McCobb  T).  Richardson,  24  Me.  83 ;  Crowder  v.  Laugdon,  3  Ircd.  Eq. 
476  ;  Hunter  v.  Goudy,  1  Ohio,  449. 

t  Lies  r.  Stubb,  6  Watts,  48;  Farley  v.  Bryant,  33  Me.  474;  Coffing  ». 
Taylor,  16  111.  457. 

It  is  not  enougli  to  show  the  sense  and  intention  of  one  of  the  parties 

to  the  contract.     It  must  be  shown  incontroveitibly  that  the  sense  and 

intention  of  the  other  party  concurred  in  it;  in  other  words,  it  must  be 

proved  that  they  both  understood  the  contract,  as  it  is  alleged  it  ought  to 

27 


410  MISTAKE. 

TJpoii  this  principle  it  is  not  competent,  in  the  case  of  a 
written  agreement,  for  either  of  the  parties  to  Avoid  its  efiect 
by  merely  showing  that  he  nnderstood  the  terms  in  a  different 
sense  from  that  which  they  bear  in  their  grammatical  con- 
struction and  legal  effect.^  In  special  cases,  however,  and 
under  special  circumstances,  a  court  of  equity  may,  as  has 
been  already  stated,  relieve  a  party  who  has,  under  a  mis- 
take of  his  private  rights,  been  induced  to  part  with  his 
property.'' 

When  a  party  is  mistaken  in  his  motives  for  entering  into 
a  contract,  or  in  his  expectations  respecting  it,  such  mistake 
does  not  affect  the  validity  of  the  contract.  K  a  man  pur- 
chases a  specific  article,  believing  that  it  will  answer  a 
particular  purpose  to  which  he  intends  to  put  it,  and  it  fails 
to  do  so,  he  is  not  the  less  on  that  account  bound  to  pay  for 
it.^    In  Cumherlege  v.  Lawson^  where  a  person  executed  a 

'  Leate  on  Contracts,  169.  399 ;   Ollivant  v.  Bayley,  5  Q.  B.  288; 

*  Meadows    v.   Meadows,    16  Beav.       Leake  on  Contracts,  109,  supra,  p.  63. 
404,  supra,  p.  333.  M  C.  B.  K  S.  709. 

'  Clianter  v.   Hopkins,  4  M.  <fe   W, 


have  1)6611,  and  in  fact  it  was,  but  for  the  mistake.  If  it  be  clearly  shown 
that  the  intention  of  one  of  the  parties  is  mistaken  and  misrepresented  by 
the  written  contract,  that  cannot  avail  unless  it  be  further  shown  that  the 
other  party  agreed  to  it  in  the  same  way,  and  that  the  intention  of  both 
of  them  was  by  mistake  misrepresented  by  the  contract.  Lyman  v.  Utica 
Ins.  Co.,  17  Johns.  373;  Nevius  v.  Dunlap,  33  N.  Y.  676;  Wemple  v  Stew- 
art, 23  Barb.  154;  Ruffner  v.  McConnell,  17  111.  212;  Gordere  i\  Downing, 
18  111.  492. 

When  parties  have  a  different  understanding  of  the  import  of  their 
contract,  the  appropriate  relief  is  not  to  reform  the  contract  but  to  set  it 
aside.     Bellows  v.  Steno,  14  N.  H.  175. 

A  court  of  equity  can  not  insert  a  stipulation  which  was  intentionallj 
omitted  from  the  contract.     Betts  v.  Gunn,  81  Ala.  219. 

When  the  clause  sought  to  be  inserted  is  not  one  that  has  been  omitted 
by  mistake,  but  is  merely  one  that  ought,  as  a  matter  of  propriety,  to  be 
inserted,  no  relief  can  be  granted.  Thompson  Scale  3Ianuf.  Co.  xi.  Osgood, 
20.  Ct.  10. 


MISTAKE. 


411 


deed  in  tlic  belief  that  another  person  Tvould  also  execute  it, 
but  did  not  deliver  it  as  an  escrow,  conditional  upon  such 
execution,  and  was  not  betrayed  into  executing  it  b.y  any 
fraud  or  misrepresentation,  he  was  held  bound  by  the  deed, 
although  the  person  expected  by  him  to  execute  it  failed  to  do 
60.^  So  also  when  a  person  being  desirous  of  becoming  a 
freeholder  in  Essex,  contracted  to  purchase  a  house  on  the 
north  side  of  the  river  Thames,  which  he  supposed  to  be  in 
that  county,  but  which  proved  to  be  in  Kent,  the  contract  was 
held  binding,  and  he  was  compelled  in  equity  to  complete  the 
TDurchase.^ 

A  court  of  eqnity  will,  however,  in  many  cases  refuse  to 
grant  a  plaintiff  the  peculiar  remedy  of  specific  performance  of 
a  contract,  which  the  defendant  has  entered  into  under  a  mis- 
take, although  the  plaintiff  was  not  privy  to  the  mistake,  or 
implicated  in  its  origin.  A  man  who  seeks  to  take  advantage  of 
the  plain  mistake  of  another,  cannot  come  to  a  court  of  equity 
to  assist  him  in  doing  so,  but  must  rest  satisfied  with  the 
remedies  which  a  court  of  law  will  give  him.^*  A  court  of 
eouity  will  not  enforce  specific  performance  of  an  agreement 
more  favorable  to  the  one  party  than  the  other,  and  involving 
hardship  upon  him,  if  there  be  reasonable  grounds  for  doubt- 
ing whether  he  entered  into  it  with  a  knowledge  of  its  nature 
and  consequences.*  The  court  will  not  compel  a  man  speci- 
fically to  perform  a  contract  which  he  never  intended  to  enter 
into,  or  which  he  would  not  have  entered  into,  had  its  true 

'  Comp.  Evans  v.  Bremrulge,  2  K.  &  516.     See  Manser  v.  Back,  6  Ila.  443, 

J.  Hi;  a  D.  M.  &  G.  100.  447  ;  Alvanley  v.  Kinnaird,  2  Mac.  & 

'  *  Shirley  v.  Davis,  cited  6  Ves.  678,  G.  7  ;  Watson  v.  Marston.  4  D.  M.  ikG. 

7Ves.  270;  but  .sre  1  Bro.  C.  C.  440.  230;    Falcke   v.   Gray,   4   Drew.  059; 

»  Manser  v.  Back,  6  Ila.  448  ;  Wood  Slirewsbury  and  Birinin;;h:iiii  Kailway 

V  Scarth,  2  K.  &.  J.  33.    See  Stapylton  Co.  v.  Nortb-Westeru  Kaihvay  Co.  6  11. 

V.  Scolt,  13  Ves.  427.  L.  113. 

*  Vivers  v.  Tuck.  1  Moo.  P.  C.  N.  S. 


*  Coles  V.  Brown,  10  Paige,  526  ;  Carberry  v.  Tannchill,  1  H.  &  J.  224. 


412  MISTAKE. 

effect  been  understood,^  *  If  tlie  description  of  tlie  property, 
tlie  suLject-matter  of  the  sale,  or  the  terms  of  tlie  contract  are 
anibiguons,  so  that  the  one  party  may  have  reasonably  made  a 
mistake,  as  to  the  subject-matter  or  the  terms  of  the  con* 
tract,  or  may  have  reasonably  put  a  different  construction  on 
the  contract  from  that  which  was  contemplated  by  the  other, 
the  court  will  not  assist  either  of  them  in  enforcing  the  con- 
tract against  the  other.'  If  the  person  who  seeks  the  aid  of 
the  court  is  the  author  of  the  ambiguity,  or  has  in  any  way 
misled  the  other,  the  rule  applies  with  peculiar  force.^  But 
the  author  of  the  ambiguity  may  himself  have  the  benefit  of 
the  rule.*  Specific  performance  may  be  refused,  even  when 
there  has  not  been  any  impropriety  of  conduct  on  the.  part  of 
the  party  seeking  specific  performance,  and  the  mistake  is 
purely  the  mistake  of  the  person  against  whom  relief  is 
sought,  if,  under  the  circumstances  of  the  case,  it  appears 
inequitable  that  there  should  be  specific  performance.^  A 
defendant,  for  instance,  may  resist  specific  performance  of  an 
agreement,  by  showing  that  he  had  made  a  mistake  in  stating 
the  terms  of  the  agreement  in  a  letter.^ 


'  Harnett  v.  Yeilding,  2  Sch.  &  Lef.  Railway  Co.  v.  Donnington  Hospital,  L. 

549;  Watson  v.  Marston,  4  D.  M.  &  G.  R.  1  Ch.  App.  268. 

230;   Wood  v.  Scarth,  2  K.  <fe  J.  33;  *  Mason  v.  Armitage,  13  Ves.   373; 

Baxendale    v.    Seale,    19    Beav.    601 ;  Higginson  v.  Clowes,  1  V.  <fe  B.  524 ; 

Webster  v.  Cecil,  30  Beav.  64;  Hoodz>,  Moxey  v.  Bigwood,  8  Jur.  N.  S.  803,  10 

Oglander,  34  Beav.  518.  Jur.  N.  S.  597. 

'^^  Calverly  v.  Williams,    1   Ves.   Jr.  *  Neap  v.   Abbott,  C.  P.  C.  333 ;    1 

210;  Jenkinson  v.  Pepys,  cit.  15  Ves.  Coop.  C.  C.  temp.  Cott.  382;  Manser  v. 

521,  1  V.  &  B.  528;  elowes  v.  Higgin-  Back,  6  Ha.  443. 

son,' 1  V.  &  B.  524;  Neap  t'.  Abbott,  C.  ^  Malins   v.  Freeman,   2   Keen,    25; 

P.  C.  333  ;    1  Coop.  C.  C.  temp.  Cott.  Alvanley  v.  Kinnaird,  2  Mac.  <fe  G.  V ; 

382 ;  Manser  v.  Back,  6  Ha.  447  ;  Bax-  Webster  v.  Cecil,   30   Beav.    64.     See 

endale  v.  Scale,  19  Beav.  601 ;  Swais-  Fairhead  v.  Southee,  9  Jur.  N.  S.  764. 

land  1).  Dearsley,  29  Beav.  430;  Moxey  •*  Wood  v.  Scarth,    2    K.  <fe   J,    33; 

V.  Bigwood,  8  Jur.  N.  S.  803 ;  Parker  v.  Webster  v.  Cecil,  30  Beav.  64. 
Taswell,  2  D.  &  J.  559.    See  Wycombe 


*  Ely  V.  Perrine,  1  Green's  Ch.  396  ;  Greer  v.  Boone,  5  B.  Mon.  554 ; 
Trigg  V.  Read,  5  Humph.  529. 


MISTAKE.  413 

If  tlie  terms  of  tlie  contract  are  not  ambiguous,  or  there 
appears  to  liave  been  no  reasonable  ground  for  the  mistake,  it 
is  not  sufficient,  in  order  to  resist  specific  performance,  for  the 
purchaser  to  swear  that  he  has  made  a  mistake,  or  did  not 
understand  what  he  was  about.^ 

If  the  mistake  cannot  be  established  without  evidence, 
equity  will  allow  a  defendant  to  a  bill  for  specific  performance 
to  support  a  defence  founded  on  this  ground  by  evidence 
dehors  the  agreement.^ 

If  the  mistake  be  of  one  party  alone  to  a  contract,  and  i<- 
be  known  to  the  other  at  the  time  of  making  the  contract,  the 
fact  that,  the  latter  knew  of  the  mistake  may  have  an  im- 
portant bearing  on  the  validity  of  the  contract.* 

If  the  one  party  has,  by  misrepresentation,  caused  the  mis- 
take for  the  purpose  of  obtaining  the  contract,  his  conduct  may 
amount  to  fraud.' 

If  he  knew  of  the  mistake  of  the  other,  but  is  not  respon- 
sible for  causing  it,  and  in  making  the  agreement  merely  re- 
mains silent,  the  question  depends  on  the  nature  of  the  mistake 
and  the  general  circumstances  of  the  ease. 

If  the  mistake  is  in  the  expression  of  the  agreement,  one  of 
the  parties  cannot  in  equity  hold  the  other  bound  to  an  ex- 
pression of  intention  which  he  knew  to  be  not  in  accordance 
with  his  real  intention.*  f    Where,  for  instance,  a  man  supposes 

'  Swaifiland   v.   Dearsley,    29    Beav.  '  Supra,  pp.  13,  15-26.      See  "Wors- 

430.     Sec  Nock  v.  Newinau,  1  L.  J.  Ch.  ley  v.  Frank,  11  L.  T.  392;  Shearman 

N.  S.  175;   Leiity  v.  Hillus,  2  D.  &  J.  v.  JSIacg-regor,  11  Ha.  106. 
110.  '  Garrai'd  v.  Frankel,  30  Bear.  445. 

»  Manser  v.  Back,  6  Tla.  448;  Wood 
».  Scartli,  2  K.  &  J.  33. 


*  Cathcart  v.  RoLinson,  5  Pet.  2G4 ;  Read  v.  Cramer,  1  Green's  Ch.  277; 
Botsford  V.  McLean,  45  Barb.  478. 

t  Greer  v.  Caldwell,  14  Geo.  207  ;  Leitensdorfer  v.  Delphy,  15  3Io.  160 ; 
Wyclie  V.  Green,  16  Geo.  49 ;  Harding  v.  Randall,  15  Me.  3:52. 

A  court  of  equity  will  rescind  a  written  contract,  whether  executed  or 
executory,  within  or  without  the  statute  of  frauds,  a  conveyance  of  realty 


414  MISTAKE 

that  he  has  entered  into  a  contract  for  a  lease  at  one  rent,  and 
it  turns  out  that  the  rent  specified  in  the  agreement  is  of  a 
different  amount,  the  contract  will  be  set  aside,  unless  the 
party  against  whom  relief  is  sought,  shall  agree  to  accept  the 
rent  which  he  knew  it  was  the  intention  of  the  plaintiff  to 
give.^  So  also  where  in  a  conveyance  of  messuages  the  plan 
on  the  deed  comprised  a  piece  of  land  not  intended  by  the 
vendor  to  be  included,  a  decree  was  made  to  vary  the  deed,  an 
option  being  given  to  the  purchaser  to  have  his  contract  an- 
nulled.^ 

If  the  mistake  is  not  in  the  expression  of  the  agreement, 
but  in  some  fact  materially  inducing  it,  the  mere  knowledge 
in  the  one  party  of  a  mistake  in  the  other  party,  does  not  in 
the  absence  of  a  duty  to  disclose,  or  other  special  circum- 
stances, constitute  a  sufficient  ground  in  equity  for  avoiding 
the  agreement.^  If  parties  are  at  arm's  length,  either  of  them 
may  remain  silent,  and  avail  himself  of  his  superior  knowledge 
as  to  tiicts  and  circumstances  equally  open  to  the  observation 

'i6.    See  also  Worsley  v.  Frank,  11  '  Harris  ti.  Pepperell,  L.  R.  5  Eq.  1. 

L.  T.  392.  *  Supra,  p.  57,  58. 


or  of  personalty,  to  let  in  an  equity  arising  from  facts  perfectly  distinct 
from  the  construction  of  the  instrument  itself;  and  whatever  doubts  may 
at  one  time  have  existed  to  the  contrary,  it  is  now  established  that  relief 
may  be  had  against  a  mistake  in  a  written  instrument;  that  such  mistake 
may  be  shown  by  parol  proof  and  relief  granted  to  the  injured  party 
whether  he  sets  up  the  mistake  affirmatively  by  a  bill,  or  as  a  defence  or 
to  rebut  an  equity.     "Wyche  v.  Green,  11  Geo.  159. 

A  court  of  equity  will  not  interfere  where  the  instrument  is  such  as  the 
parties  themselves  designed  it  to  be,  for  if  they  voluntarily  clioose  to  ex- 
press themselves  in  the  language  of  the  instrument,  they  are  bound  by  it. 
McElderiy  v.  Shipley,  2  Md.  25;  Leavitt  «.  Palmer,  3  K  Y.  19;  Stoddard 
V.  Hart,  23  N.  Y.  556  ;  Gamer  v.  Bird,  57  Barb.  277. 

The  choice  must  be  such  a  voluntary  choice  as  the  law  considers  a 
Eufficiently  free  exercise  of  the  wUl  to  constitute  an  agreement,  a  valid 
instrument  in  the  absence  of  fraud,  and  not  a  choice  made  undL-r  undue  or 
fraudulent  influence.     Wilson  i-.  Watts,  9  Md.  356. 


MISTAKE.  415 

of  both,  or  equally  -within  the  reach  of  their  ordinary  dili- 
gence, and  is  under  no  obligation  to  draw  the  attention  of  the 
other  to  circumstances  affecting  the  property,  the  subject-mat- 
ter of  the  contract,  although  he  may  know  him  to  be  under  a 
mistake  with  respect  to  them.^  The  case,  however,  is  other- 
wise if  there  be  a  duty  to  disclose.  A  party  who  is  under  a 
duty  to  disclose,  and  who,  there  is  reason  to  believe,  knows 
more  about  the  subject-matter  of  the  agreement  than  the  other 
party,  will  not  be  permitted  by  a  court  of  equity  to  hold  the 
latter  to  the  agreement.^  Relief  may  indeed  be  at  times  had 
in  equity,  even  though  no  fiduciary  relation  appears  to  subsist 
between, the  parties,  when,  under  the  special  circumstances  of 
the  case,  it  appears  inequitable  that  the  one  party  should  hold 
the  other  to  his  engagement.^  Relief,  accordingly,  was  given, 
where  an  instrument  had  been  delivered  up  under  the  ignor- 
ance of  one  party,  and  with  the  knowledge  of  the  other  as  to  a 
fact,  upon  which  the  rights  attached.* 

Money  jjaid  voluntarily,  under  mistake  of  fact,  is  recover- 
able both  at  law  and  in  equity,  unless  it  be  clear  that  the  party 
making  the  payment  intended  to  waive  all  inquiry  into  the 
facts.  It  is  not  enough  that  he  may  have  had  the  means  of 
learning  the  truth  if  he  had  chosen  to  make  inquiry.  The 
only  limitation  is  that  he  must  not  waive  all  inquiry.^* 

By  the  general  rule  of  the  common  law,  if  there  be  a  con- 

'  Supra,  p.  54.  *  lb. 

«Co(kiiii,r  v.  Pratt,  IVes.  400;  Millar  Mvelly   v.    Solari,    9   M.   &  W.  54 ; 

V.   Crai:;,    6   Bcav.   433;   Meadows  v.  Townscnd   v.  Crowdy,  8  0.   B.   N.   S. 

Meadiiws,  10  Beav.  404;  Cox  V.  Bi'uton,  477.     See  Gva^Qvy  v.  Pilkington,  8  D. 

6  W.  R.  544.  M.  <fc  G.  616;  Shand  v.  Giaut,  15  C.  B. 

'  East    India  Co.   v.   Donald,  9  Yes.  N.  S.  324. 
275. 


*  Scott  V.  Warner,  2  Livns.  49 ;  Boon  v.  Miller,  16  Mo.  457;  Aslibrook  o. 
Wattins,  3  Mon.  82. 

The  payment  of  a  check  retained  beyond  the  time  fixed  by  the  rules  of 
the  clearing-house  by  mistake,  is  p;iyment  under  a  mistake  of  fact.  Mer- 
chants' National  Bank  v.  National  Eagle  Bank,  101  Mass.  281. 


416  MISTAKE. 

tract  wliicli  has  been  reduced  into  writing,  verbal  evidence  ia 
not  allowed  to  be  given  of  wbat  passed  between  tlie  parties, 
either  before  the  written  instrument  was  made,  or  during  the 
time  it  was  in  a  state  of  preparation,  so  as  to  add  or  subtract 
from,  or  in  any  manner  to  vary  or  qualify,  the  written  con- 
tract.^ A  court  of  equity,  however,  admits  such  evidence, 
whether  the  purpose  of  the  suit  be  to  rectify  or  rescind  an 
agreement.^  *  But  the  court  will  not  act  upon  such  evidence, 
unless  the  proof  be  clear  and  conclusive.  In  all  cases  where 
such  evidence  is  given,  great  attention  will  be  paid  to  what  is 
stated  by  the  other  party  to  the  instrument.® 

The  mistake  may  be  common  to  both  parties  to  a  trans- 
action, and  may  consist  either  in  the  expression  of  their  agree- 
ment, or  in  some  matter  inducing  or  influencing  the  agree- 
ment, or  in  some  matter  to  which  the  agreement  is  to  be  ap- 
plied.* f 

'  Goss  V.  Lord  Nugent,  5  B.  &  Ad.  '  Bentley  v.  Mactay,  31  L.  J.   Ch. 

68.  709,  hifra,  p.  421. 

*  Bentley   v.  Mackay,    31  L.  J.  Ch.  *  Leake  oq  Contracts,  p.  172. 
^09  ;  Garrard  v.  Frankel,  30  Beav.  451. 


*  Gillespie  v.  Moon,  3  Johns.  Ch.  585 ;  Washburn  v.  Merrills,  1  Day, 
139 ;  Graves  v.  Mattingly,  6  Bush.  361. 

t  Allen  V.  Hammond,  11  Pet.  G33 ;  s.  c.  2  Sumner,  387;  Thompson  v. 
Jackson,  3  Rand.  504  ;  Carr  v.  Callaghan,  3  Litt.  365 ;  Glassell  v.  Thomas, 
3  Leigh,  113  ;  Chamberlaine  v.  Marsh,  6  Munf.  283. 

Nothing  is  more  clear  in  equity  than  the  doctrine  that  a  contract 
founded  in  a  mutual  mistake  of  the  fticts  constituting  the  very  basis  or 
essence  of  it  will  avoid  it.  Daniel  v.  Mitchell,  1  Story,  173  ;  Marvin  ®. 
Bennett,  8  Paige,  312 ;  Leger  v.  BonaflFe,  2  Barb.  475 ;  Irick  v.  Fulton, 
8  Grat.  193;  Miles  v.  Stevens,  3  Barr,  21. 

Where  the  mistake  is  of  so  fandameutal  a  character  that  the  miuds  of 
the  parties  have  never,  in  fact,  met,  or  where  an  unconscionable  advantage 
has  been  gained  by  mere  mistake  or  misapijrehensions,  and  there  has 
been  no  gross  negligence  in  falling  into  error,  relief  may  be  granted. 
Brown  r.  Lamphear,  35  Vt.  252;  Allen  v.  Hammond,  11  Pet.  63;  Williams 
T.  Shaflford,  8  Pick.  250;  Connor  v.  Henderson,  15  Mass.  31!);  Winston  v. 
Gwathmey,  8  B.  ilon.  23;  Greene  v.  Batemau,  2  Woodb.  &  M.  359. 

A  mutual  mistake  in  regard  to  the  title  of  the  vendor  is  ground  foi 


MISTAKE.  417 

The  rule  at  law  is  that  an  agreement  cannot  be  varied  by 
external  evidence,  and  that  the  parties  are  bound  by  the  docu- 
ment, which  they  have  signed  and  accepted  as  their  agree- 
ment,^ unless  there  be  error  on  the  face  of  it  so  obvious  as  to 
leave  no  doubt  of  the  intention  of  the  parties,  without  the  as- 
sistance of  external  evidence.  If  there  be  mistake  or  error  on 
the  face  of  an  instrument,  a  court  of  law  can  correct  it.^  * 

The  strict  rule  at  law  is,  however,  largely  tempered  by 
the  doctrine  and  practice  of  courts  of  equity,  for  a  court  of 
equity  will  not  speciiically  enforce  a  contract  which  has  been 
drawn  up  by  mistake,  in  terms  not  in  conformity  with  the  real 
agreement  of  the  parties,  and  will,  in  many  cases,  reform  or  set 
aside  the  mistaken  agreement. 

The  defence  that  the  contract  sought  to  be  enforced  is  not 
in  conformity  with  the  real  agreement  between  the  parties,  but 
has  been  drawn  up  incorrectly  by  mistake,  may  be  set  up  by 
parol  evidence  in  answer  to  a  bill  for  specific  performance.' f 
If  the  defendant  can  show  that  the  instrument  does  noi  repre- 
sent the  real  agreement  between  the  parties,  the  plaintiff  can- 
not have  specific  performance,  unless  he  consent  to  the  vari- 


'  Hitchin  V.  Groom,  6  0.  B.  515.  'Joynes   v.    Statham,    3   Atk.    388; 

"^  Wils  >n  V.  Wilson,  5   II.  L   66;  per  Garrard  v.  Grinliiic;,  2  S\v.  2-14;  Lord 

Lord  ISt.  Leonards;  Leake  on  Contracts,  Gordon  v.  Marquis  of  Hertford,  2  Mada. 

173.  100. 


relief.  Smith  v.  Robertson,  23  Ala.  313 ;  Hyne  v.  Cami^bell,  6  Mon.  286  ; 
Boulin  V.  Pollock,  7  Mon.  20. 

If  a  judgment  is  confessed  under  a  clear  mistake,  a  court  of  law  will 
set  it  aside  if  application  be  made,  and  the  mistake  shown  while  the  judg- 
ment is  in  its  power.  An  agreement  to  confess  judgment  is  not  stronger 
than  the  confession  itself.  If  the  judgment  is  no  longer  in  the  power  of 
the  court,  relief  may  be  obtained  in  chancery.  These  i^i'lnciples  are  of 
universal  justice,  and  universal  application.     The  Hiram,  1  Wheat.  440. 

*  liarr  «.  Broadway  Ins.  Co.  10  N.  Y.  209 ;  Cries  x.  Withers,  20  Md. 
653. 

t  Cathcart  v.  Robinson,  5  Pet.  204;  Bradbui-y  v.  White,  4  Green!.  391; 
Voorhees  v.  De  Meyer,  2  Barb.  37. 


418  MISTAKE. 

ation  as  set  np  by  the  defendant.  If  the  plaintiff  will  not  ac- 
cept specific  performance  with  the  variation  as  set  up  and 
proved  by  the  defendant,  his  bill  will  be  dismissed  ;  ^  and  spe- 
cific 2)erformanee  of  the  agreement,  with  the  variation  proved, 
may  be  tlecreed  at  the  instance  of  the  defendant  without  a 
cross  bill.^  Athough  a  defendant  may  show  by  parol  that  the 
written  instrument  does  not  represent  the  contract  between 
the  parties,  a  plaintiff  cannot  have  a  decree  for  specific  per- 
formance of  a  written  contract  with  a  variation  upon  parol 
evidence,  for  the  Statute  of  Frauds  is  a  bar  to  the  relief.^  * 
Parol  evidence  is  admissible  on  the  part  of  the  party  resisting 
specific  performance,  not  to  vary  the  terms  of  the  agreement, 
but  to  show  that  it  is  unconscientious  in  the  plaintiff  to  seek 
specific  performance,  without  submitting  to  the  variation  set 
up  and  proved  by  the  other.* 

If  parties  enter  into  an  agreement,  but  there  is  an  error 
in  the  reduction  of  the  agreement  into  writing,  so  that 
the  written  instrument  fails  through  some  mistake  of  the 
draftsman,  either  in  matter  of  law  ^  f  or  of  fact,  to  represent 

'Joynes   v.    Statham,    3    Atk.    388;  Squire  v.  Campbell,  1  M.  <fe  C.  459,  480, 

Clarke  v.  Grant.   14  Yes.   519;  Rams-  per  Lord  Cottenham;  Att.-Gen.  ».  Sit- 

bottom    V.    Gosden,    1  V.   &  B.    165;  well,  1  Y.  <fe  C.  559;   Davies  v.  F'ltUm, 

London  and  Birmingham  Railway  Co.  2  Dr.  &  War.  225  ;  Manser  v.  Back,  6 

V.   Winter,    Cr.    &  Ph.  57 ;  Martin  v.  Ha.  443,  447 ;  Wilson  v.  Wilson,  5  H. 

Pycrofr,  2  D.  M.  &  G.  785;  Fallon  v.  L.  6o.per  Lord  St.  Leonards. 

Robins,  16  ir.  Ch.  428.  "Clowes  v.  Higginson,   1   V.    &   R, 

*  Fife  V.  Clayton,  13  Yes.  54C.  524. 

8  Woollam    v.    Ilearn,    7  Yes.    211 ;  '  Wake  v.  Harrop,  1  H.  &  C.  202. 
Clinan  v.  Cooke,  1   Sch.  &  Lef.  22,  39 ; 


*  A  court  of  equity  may,  in  tlie  same  suit,  at  tlie  instance  of  tlie  plaintifi^ 
rectify  an  instrument,  aud  decree  specific  iDerformance.  Gillespie  v.  Moon, 
2  Johns.  Ch.  535  ,  Kerssilbrack  v.  Livingston,  4  Johns.  Ch.  144;  Moale  «. 
Buchanan,  11  G.  &  J.  314 ;  Mosby  v.  Wall,  23  Miss.  81  ;  Ballance  v.  Under- 
hill,  3  Scam.  453;  Huson  v.  Pitman,  2  Hayw.  331;  Willis  v.  Henderson,  4 
Scam.  13;  Smith  v.  Allen,  Saxton  43;  Bellows  v.  Stone,  14  N.  H.  175; 
co7itr(i,  Osboi-ne  v.  Phelps,  19  Ct.  (J2;  Elder  v.  Elder,  10  Me.  80;  Thoma?  v. 
McCormick,  9  Dana,  108. 

t  Beardsley  r.  Knight,  10  Vt.  185  ;  Goodell  v.  Field,  15  Vt.  448  ;  Wash- 
bmn  V.  Merrill,  1  Day,  139  ;  Alexander  v.  Newton,  2  Grat.  2GG  ;  Parham 


MISTAKE,  419 

the  real  agreement  of  the  parties,  or  omits  or  contains  terms 
or  stipulations  contrary  to  the  common  intention  of  the  parties, 
a  court  of  equity  will  correct  and  reform  the  instrument,  so  as 
to  make  it  conformable  to  the  real  intent  of  the  parties.** 
So  also  if  a  conveyance,  executed  for  the  purpose  of  giving 
effect  to  and  executing  an  agreement,  should  by  mistake  give 
the  purchaser  less  than  the  agreement  entitled  liim  to,  he  may 
call  on  the  court  to  rectify  the  defective  conveyance,  and  give 
him  all  that  the  agreement  comprehended.'' f     The  principle 

»  Beaumont  v.  Bramley,  T.  <fe  R.  41 ;  wood,  32  Beav.  436  ;  33  L.  J.  Ch.  106; 

Cockerell    V.   rholniclej-.    Taml.    435;  Druiff  e-.  Parker.  L.  R.  5  Eq.  137. 
Asliluirst  V.  Mill,  7  Ha.  502  ;  Barrow  v.  ^  Monro  v.  Taylor,  3  Mac.  &  G.  718 ; 

Barrow,  18, Beav.  529;  lilurray  i:  Par-  Leuty  v.  Ilillas,  2  D.  &  J.  120;  4  Jur. 

ker,  19  Beav.  308;  Reader.  Armstrong,  N.  S.  1167.     See  Cox  v.  Bruton,  5  W. 

7  Ir.  Ch.   375;  Malinesbury  v.  Malmes-  R.  544. 
bury,  31  Beav.  407  ;  Scbolfield  v.  Lock- 


V.  Parham,  6  Humph  287 ;  Rogers  v.  Atkinson,  1  Kelly,  12 ;  Collier  v. 
Lanier,  1  Kelly,  238 ;  Larkins  x.  Biddle,  21  Ala.  252  ;  Stedwell  v.  Anderson, 
31  Ct.  139. 

*  Baynard  v.  Norris,  5  Gill,  468 ;  Wooden  v.  Haviland,  18  Ct.  101  ; 
Savage  v.  BeiTy,  2  Scam.  545  ;  Hunt  v.  Freeman,  1  Ohio,  226  ;  Finley  v, 
Ljan,  6  Cranch,  238  ;  Scott  v.  Duncan,  1  Dev.  Eq.  403  ;  Aldridge  v.  Weems, 
2G.  &J.  36;  Manz  v.  Beekman  Ii'on  Co.,  9  Paige,  188;  Newcomer  v. 
Kline,  11  G.  «&  J.  457;  Peterson  v.  Grover,  20  Me.  363;  Chamberlain  v. 
Thompson,  10  Ct.  243  ;  Keyton  v.  Branford,  5  Leigh,  39  ;  Desell  v.  Casey, 
3  Dessau.  84 ;  Bass  «.  Gilliland,  5  Ala.  761 ;  Leonard  r.  Austin,  2  How. 
(Miss.)  888 ;  Gelton  v.  Hawkins,  2  J.  J.  Marsh.  1 ;  McMillin  v.  McMillin,  7 
Mon.  560. 

t  Tilton  V.  Tilton,  9  K  H.  385 ;  Riemer  v.  Cantillon,  4  Johns.  Ch.  85 ; 
Blessing  v.  Beatty,  1  Rob.  287  ;  Gardner  v.  Gardner,  1  Dessau.  137  ;  Blod- 
gett  f.  Hobart,  18  Vt.  414  ;  McKay  v.  Simpson,  6  L-ed.  Eq.  452;  Blair  y. 
McDonnell,  1  Halst.  Ch.  327. 

A  mistake  may  be  corrected  betw^een  the  original  parties,  or  those 
claiming  under  them  in  priority,  as  heirs,  devisees,  legatees,  assignees, 
voluntary  grantees,  or  judgment  creditors,  or  purchasers  from  them  with 
notice.  Simmons  v.  North,  3  Smed.  &  Mar.  67;  Wall  v.  Arrmgton,  13  Geo. 
88 ;  Strang  v.  Beach,  11  Ohio  St.  R.  283. 

A  bill  will  not  lie  to  correct  a  mistake,  unless,  on  application,  those 
having  power  to  rectify  it  refuse  to  do  so.  Lamkin  v.  Reese,  7  Ala.  170  ; 
Beck  V.  Simmons,  7  Ala.  71. 

The  omission  of  a  statutory  requirement  may  hs  supplied.  Beards) ey 
e.  Knight,  10  Vt.  185 ;  Watson  v.  Wells,  5  Ct.  468. 


420  MISTAKE. 

Tipou  wliicli  tlie  court  acts  in  correcting  instruments,  is,  that 
the  parties  are  to  be  placed  in  the  same  situation  as  they  would 
have  stood  in  if  the  error  to  be  corrected  had  not  been  com- 
mitted. When  a  deed  as  drawn  up  goes  beyond  the  in  struc- 
tions  and  the  intention  of  the  parties,  it  will  be  rectified.^  "* 

*  Walker  v.  Armstrong  8  D.  M.  &  G.  544. 


"When  tliere  is  an  omission  of  some  statutory  requirement  in  the  deed 
of  a  feme  covert,  the  mistake  can  not  ba  corrected.  Dickinson  v.  Glenney, 
27  Ct  104 ;  Grapengether  v.  Fejervary,  9  Iowa,  183. 

If  an  instrument  is  prepared  according  to  the  intentions  of  the  parties, 
but  read  incorrectly,  it  will  be  valid.  White  v.  Williams,  2  Green's  Ch. 
376. 

A  penal  bond  left  in  blank  may  be  filled  up.  Gray  v.  Rumph,  2  Hill's 
Ch.  6. 

The  omission  of,  a  seal  may  be  supplied.  Montville  v.  Haughton,  7  Ct 
542  ;  Rutland  v.  Paige,  24  Vt.  181. 

The  omission  of  words  of  inheritance  may  be  corrected.  Rutledge  v. 
Smith,  1  Busbee's  Eq.  283  ;  Wright  v.  Delafield,  23  Barb.  498  ;  Colchester 
V.  Culver,  29  Vt.  Ill;  Sprmgs  v.  Harven,  3  Jones' Eq.  96 ;  Cromwell  ». 
Winchester,  2  Head.  389. 

The  word  "  dollars  "  may  be  inserted  in  a  sealed  note.  Newcomer  v. 
Kline,  11  G.  &  J.  457. 

An  instrument  may  be  corrected  against  sureties,  as  well  as  against 
others.  Butler  r.  Durham,  3  Ired.  Eq.  589 ;  Huson  v.  Pitman,  2  Hey.  331 ; 
Newcomer  v.  Kline,  11  G.  &  J.  457. 

A  deed  may  be  corrected  so  as  to  bind  the  fii'm,  instead  of  one  part- 
ner.   McNaughton  v.  Partridge,  11  Ohio,  223. 

A  mistake  in  an  application  for  an  insurance  policy  may  be  corrected, 
even  after  a  loss  has  occurred.  Harris  v.  Columbiana  County  Ins.  Co.,  18 
Ohio,  116. 

A  mistake  in  an  insurance  policy  may  be  rectified.  Fireman's  Ins.  Co. 
V.  Powell,  13  B.  :Mon.  311 ;  National  Fire  Ins.  Co.  v.  Crane,  16  Md.  260. 

A  lon'i  fide  purchaser  may  have  a  deed  corrected  as  to  the  description, 
so  as  to  discharge  the  land  from  a  judgment  lien  that  attached  aftL'r  the 
execution  of  the  defective  conveyance.  Gouverneur  v.  Titus,  1  Edw.  Ch. 
477  ;  Simmons  v.  North,  3  Smed.  &  Mar.  67 ;  ^Vhite  v.  Wilson,  6  Blackf. 
448 ;  Barr  v.  Hatch,  3  Ohio,  527. 

An  omission  with  knowledge,  and  reliance  on  a  parol  promise  that  the 
omitted  portion  shall  be  carried  out,  is  not  a  mistake  or  ground  for  relief, 
Ligon  T.  Rogers,  12  Geo.  281. 

A  court  of  equity  will  rot  correct  a  mistake  in  a  voluntary  couvey&nce. 
Minturn  v.  Seymour,  4  Johns.  Ch.  497. 

♦  Tilton  ^.Tilton,  9  N.  H.  385  ;  Le  Roy  v.  Piatt,  4  Paige,  77 ;  Watson 


MISTAKE.  421 

Relief  upon  a  defective  instrument  is  tlie  more  recadily  afforded 
when  tlie  party  to  "be  charged  thereon  is  liimself  the  person 
who  prepared  or  perfected  it.*  The  fact,  however,  that  the 
defective  instrument  may  have  been  drawn  up  by  the  party 
seeking  relief  is  immaterial,  if  a  proper  case  be  made 
out* 

A  person,  however,  who  seeks  to  rectify  an  instrument,  on 
the  ground  of  mistake,  must  be  able  to  prove  not  only  that 
there  has  been  a  mistake,  but  must  be  able  to  show  exactly 
and  precisely  the  form  to  which  the  deed  ought  to  be  brought, 
in  order  that  it  may  be  set  right  according  to  what  was  I'eally 
intended,  and  must  be  able  to  establish,  in  the  clearest  and 
most  satisfactory  manner,  that  the  alleged  intention  of  the 
parties  to  which  he  desires  to  make  it  conforijiable,  continued 
concurrently  in  the  minds  of  all  parties  down  to  the  time  of 
its  execution.  The  evidence  must  be  such  as  to  leave  no  fair 
and  reasonable  doubt  upon  the  mind  that  the  deed  does  not 
embody  the  final  intention  of  the  parties."*  If,  upon  a  per- 
sonal agreement  for  a  life  assurance,  a  policy  be  drawn  by  the 

'  Ex-parte  Wright,  19  Ves.  257 ;  Col-  Rooke  v.  Lord  Kensington,  2  K.  <fe  J. 

lett  V.  Morrison,  9  Ha.  176.  764  ;  Fowler  v.  F()wlerr4  D.  &.  J.  265  ; 

*  Ball  V.  Storie,  1  Sim.  &  St.  218.  Earl  of  Bradford  v.  Earl  of  Romnej',  30 

'Lord  Townshend  v.  Stangroom,  6  Beav.  4-31;  Bentley  t>.  Mackav,  31  L.  J. 

Ves.  334 ;  Beaumont  v.  Bramley,  T.  &  Ch.  709  ;  Sells  v.  Sells,  1  Dr.  &  Sm.  42. 

R.  41,  50 ;  Marquis  of  Breadalbane  v.  See  Lloyd  v.  Cocker,  19  Beav.  144. 

Marquis  of  Chaados,   2  M.  &  C.   740 : 


».  Cox,  1  Ired.  Eq.  389  ;  Davis  v.  Phelps,  7  Mon.  632 ;  Richardson  v.  Blight, 
8  B.  Mon.  580. 

*  United  States  v.  Munroe,  5  Mason,  573  ;  Lyman  v.  Little,  23  Vt.  576  ; 
Lyman  «.  United  States  Ins.  Co.,  17  Johns.  373 ;  s.  c.  2  Johns.  Ch.  630 ; 
Triplett  v.  Bailey,  8  Humph.  230  ;  Farly  v.  Bryant.  33  Me.  474  ;  Reese  v. 
Wyman,  9  Geo.  430  ;  Mosby  v.  Wall,  23  Miss.  81 ;  Beard  v.  Hubble,  9  Gill, 
420 ;  Brantley  v.  West,  27  Ala.  542. 

If  the  mind  of  the  court  is  satisfied,  the  requirement  is  complied  w-ith. 
Gillespie  v.  Moon,  2  Johns.  Ch.  585;  Sharman  v.  IMiller,  6Md.  479;  Tucker 
V.  Maddin,  44  Me.  200  ;  Hillman  v.  Wright,  9  Ind.  126  ;  Davidson  v.  Greer, 
3  Sneed,  384  ;  Ruffner  v.  McConnell,  17  111.  217. 


422  MISTAKE. 

insurance  office  in  a  form  which  differs  from  the  tenns  of  the 
agreement,  and  varies  the  rights  of  the  parties  assured,  equity 
will  interfere  and  deal  with  the  case  on  the  footing  of  the 
agreement,  and  not  on  that  of  the  policy.^  If  it  appear  that 
there  was  a  change  of  intention,  by  which  the  circumstance 
that  the  instrument  does  not  follow  the  terms  of  the  original 
contract  might  be  explained,  there  can  be  no  rectification ; '  so, 
also,  if  it  appear  tliat  the  parties  took  different  views  of  what 
was  intended,  there  would  be  no  contract  between  them  which 
could  be  carried  into  effect  by  rectifiying  the  instrument.^ 
There  can  be  no  rectification,  if  the  mistake  be  not  mutual  or 
common  to  all  parties  to  the  instrument,*  or  if  one  of  the 
parties  knew  of  the  mistake  at  the  time  he  executed  the  deed. 
Rectification  can  only  be  had  where  both  parties  have  executed 
an  instrument  under  a  common  mistake,  and  have  done  what 
neither  of  them  intended.^  A  mistake  on  one  side  may  be  a 
ground  for  rescinding,  but  not  for  correcting  or  rectifying  an 
agreement.* 

In  Harris  v.  Pepperell,'  Lord  Romilly,  M.  R.,  said  that  the 
rule  that  the  court  will  not  rectify  an  instrument  on  the 
ground  of  mistake,  except  the  mistake  be  mutual,  is  liable  to 
an  exception  in  a  case  between  vendor  and  purchaser.  But 
the  distinction  is  not  supported  by  the  authorities,  and  does 
not  seem  sound.  Garrard  v.  Franke  ^  and  Harris  v.  Pepperell,^ 
were,  there  is  no  reason  to  doubt,  correctly  determined ;  but 
the  principle  upon  which  they  are  to  be  upheld  is,  that  the 
court  in  these  cases  merely  abstained  from  setting  the  agree- 
ment aside,  on  the  consent  of  the  defendant  to  submit  to  the 


'  Collett  ?,'.  Morrison,  9  Ha.  162.  *  Eaton  v.   Bennett,  34  Ecav.   196; 

"  Marquis  of  Breadalbane  v.  Marquis  Fallon  v.  Robins,  16  Ir.  Ch.  422. 

of  Chandos,  2  M.  &  C.  740.  "  Mortimer  v.  Shortall,  2  Dr.  &  War. 

'  Bentley  v.  Mackay,  31   L.  J.  Ch.  3'72;  Fowler  v.  Fowler,  4  D.  <fe  J.  265. 

709.  '  L.  R.  5  E.|.  1. 

*  Roolce  V.  Lord  Kensington,   2  K.  <fe  "  30  Beav.  451. 

J.   753  ;  Fowler  v.  Fowler,   4   D.  <fe  J.  "  L.  R.  5  Eq.  1. 
205 ;  Sells  v.  Sells,  1  Dr.  &  Sm.  42. 


MISTAKE.  423 

variation  alleged  by  tlie  plaintiff.  In  cases  of  rectification, 
properly  so  called,  the  court  does  not  put  it  to  the  defendant 
to  submit  to  the  variation  alleged  by  the  plaintiff,  but  makes 
the  instrument  conformable  to  the  intent  of  the  parties  with- 
out any  such  offer  or  submission. 

Although,  however,  the  court  will  not  rectify  a  transaction 
between  two  or  more  parties,  unless  on  the  ground  of  mutual 
mistake,  a  deed  poll  by  way  of  appointment  may  be  rectified 
on  the  ground  of  mistake,  if  the  mistake  is  clearly  proved  on 
the  part  of  the  person  making  it.^ 

Parol  evidence  is  admissible  on  the  application  to  rectify 
an  instrument  to  show  what  the  intention  of  the  parties  really 
was.^  In  most,  if  not  in  all,  the  cases  in  which  the  court  has 
reformed  an  instrument,  there  has  been  something  beyond  the 
parol  evidence,  such,  for  instance,  as  a  rough  draft  of  the 
agreement,  written  instructions  for  preparing  it,  or  the  like; 
but  the  court  will  act  where  the  mistake  is  clearly  established 
by  parol  evidence,  even  though  there  is  nothing  in  writing  to 
which  the  parol  evidence  may  attach.^  If,  however,  there  is 
not  anything  in  writing  beyond  the  parol  evidence  to  go  by, 
and  the  defendant,  by  his  answer,  denies  the  case  set  up  by 
the  plaintiff,  the  plaintiff  will  often  be  without  a  remedy, 
though,  even  in  such  cases,  the  parol  evidence  may  be  so 
conclusive  as  to  justify  the  court  in  granting  the  reliel 
prayed."* 

If  the  original  agreement  is  of  doubtful  construction,  and 
the  conveyance  is  definite  and  unequivocal,  it  is  not  easy  to 


'  Wriglit  V.  GofT,  22  Beav.  214.     See  Mortimer  v.  Shortall,  2  Dr.  &  T\'ar.  375 ; 

Wilkinson  v.  Nelson,  7  Jur.  N.  S.  481.  Lackersteen  v.  Lackersteen,  (5  Jur.  N.  S. 

'Alexander  i.  Crosbie,  LI.  <fe G.  temp.  1111;   Tomlison  v.  Leigh,   llJur.  N.  S. 

Sag.  145 ;  Mortimer  v.  Shortall,  2  Dr.  902. 

&  War.  36:3 ;  Burrow  v.  Barrow,  18  Beav.  ■*  lb. ;  Beaumont  ?;.  Bramley,  T.  A  R. 

532;  Lackersteen  V.  Lackersteen,  6  Jur.  52;  Fowler  v.  Fowler,  4  D.  &  J.  273; 

N.  S.  11 1 1.  Beutley  v.  Mackay,  31  L.  J.  Ch.  709. 
,    •  Alexander  v.  Crosbie,  LI.  <fe  G.  149 ; 


424  MISTAKE. 

avoid  the  conclusion  that  the  latter  may  be  the  best  evidence 
of  the  terms  of  the  actual  ag-reement.^ 

Where  a  document  has  been  sio^ned  as  an  a2:reement  in  a 
common  mistake  as  to  its  contents,  and  it  appears  that  no  real 
agreement  was  come  to  between  the  parties,  according  to  which 
it  might  be  rectified,  the  court  will  set  it  aside.^  There  can  be 
no  rectification,  if  one  of  the  contracting  parties  never  heard  of 
that  which  is  said  to  be  the  real  agreement.^ 

Where  the  instrument  sought  to  be  rectified  on  the  ground 
of  mistake  was  a  marriage  settlement,  the  doctrine  in  the  older 
cases  Avas,  that  where  the  articles  and  settlements  were  both 
before  marriage,  the  court  would    not   interfere,  unless    the 
settlement  was  expressed  to  be  made  in  pursuance  of  the  arti- 
cles, for,  without  such  a  recital,  the  court  supposed  that  the 
parties  had  altered  their  intentions  as  regarded  the  terms  of 
the  contract.*     The  later  authorities,  however,  dispense  with 
the  necessity  of  a  reference  to  previous  articles  in  the  settle- 
ment.^    Where  a  settlement  purports  to  be  in  pursuance  of 
articles  entered  into  before  marriage,  and  there  is  any  variance, 
then  no  evidence  is  necessary  to  have  the  settlement  corrected ; 
and  although  the  settlement  contains  no  reference  to  the  arti- 
cles, yet  if  it  can  be  shown  that  the  settlement  was  intended 
to  be  in  conformity  with  the  articles,  and  there  is  clear  and 
satisfactory  evidence  showing  that  the  discrepancy  had  arisen 
from  a  mistake,  the  court  will  reform  the  settlement,  and  make 
it  conformable  to  the  real  intention  of  the  parties.^ 

In  some  cases,  where  the  fact  of  the  mistake  can  be  fairly 
implied  from  the  nature  of  the  transaction,  relief  will  be  given, 


"  Hnmpliries  v.  Ilorne,  3  Ha.  277.  '  Fowler  v.   Scottish  Equitable  Life 

^  Calverley  v.  Williams,   1  Ve3.  Jr.  Assurance  Society,  28  L.  J.  Ch.  228. 

210;  Price  v.  Ley,  4  Giff.  235;  aff.  11  *  Bold  v.  Hutchinson,  5  D.  M.  <fc  G. 

W.  R.  473 ;  Fowler  v.   Scottish  Equit-  566. 

able  Life  Assurance  Society,  28  L.  J.  *  lb. 

Ch.  228.     See  Cox  v.  Brutbn,  5  W.  R.  « lb.  568, 

544. 


MISTAKE.  425 

although  the  fact  of  the  mistake  is  not  estabh'shed  by  direct 
evidence.  Thus,  in  cases  where  there  has  been  a  joint  loan  of 
money  to  two  or  more  obligors,  and  they  are  by  the  instrument 
made  jointly  liable,  but  not  jointly  and  severally,  the  court  has 
reformed  the  instrument  and  made  the  obligation  joint  and 
several,  so  as  to  charge  the  estate  of  a  deceased  obligor,  upon  . 
the  reasonable  presumption,  from  the  nature  of  the  transaction, 
that  it  was  so  intended  by  the  parties.^  *  The  debt  being 
joint,  the  natural,  if  not  the  irresistible,  inference  in  such  cases 
is,  that  it  is  intended  by  all  the  parties  that,  in  every  event,  the 
responsibility  should  attach  to  each  obligor,  and  to  all  equally. 
This  can  be  done  only  by  making  the  bond  several  as  well  as 
joint ;  for  otherwise,  in  case  of  the  death  of  one  of  the  obligors, 
the  survivor  or  survivors  only  would  be  liable  at  law  for  the 
debt.^  Indeed,  it  is  now  well  established,  as  a  general  prin- 
ciple, that  every  contract  for  a  joint  loan  is,  in  equity,  to  be 
deemed,  as  to  the  parties  borrowing,  a  joint  and  several  con- 
tract, whether  the  transaction  be  of  a  mercantile  nature  or  not ; 
for,  in  every  such  case,  it  may  fairly  be  presumed  to  be  the 
intention  of  the  parties  that  the  creditor  should  have  the 
several,  as  well  as  the  joint,  security  of  all  the  boiTowers  for 
the  payment  of  the  debt.^  Hence,  if  one  of  the  boiTOwers 
should  die,  the  creditor  has  a  right  to  proceed  for  immediate 
relief  out  of  the  assets  of  the  deceased  party,  without  claiming 
any  relief  against  the  surviving  joint  contractors,  and  without 
showing  that  the  latter  are  unable  to  pay  by  reason  of  their 
insolvency.* 

*  Simpson  v.  Vaughan,  2  Atk.  31,  32 ;  *  Gray  v.  Chiswell,  9  Ves.  118 ;  ^x- 

Bishop  V.  Church,   2  Ves.    100,   371;  paWfi  Kendall,  17  Ves.  525. 
Thomas  v.  Frazer,  3  Ves.  399 ;  Under-  '  Thorpe  v.  Jackson,  2  Y.  &  C.  553. 

hill  V.  Ilorwood,  10  Ves.  227  ;  Devaynea  *  lb.;  Williamson  v.  Henderson,  1  M. 

V.  Noble,  Sleech's  Case,   1  Mer.  564 ;  &  K.  582. 
Thorpe  v.  Jackson,  2  Y.  «fe  C.  553. 


*  Weaver  e.  Shryork,  0  S.  &  R.  263;  Barnes  v.  Camart,  1  Barb.  S94; 
Hyde  v.  Tanner,  1  Barb.  84. 


42G  MISTAKE. 

But,  where  tlie  inference  of  a  joint  original  debt  or  liability 
is  repelled,  a  court  of  equity  will  not  interfere  ;  for  in  sucli  a 
case  there  is  no  ground  to  presume  a  mistake.  The  doctrine 
has  been  thus  stated  by  Sir  "W.  Grant,  in  Sumner  v.  Powell :  ^ 
"  Where  the  obligation  exists  only  in  virtue  of  a  covenant,  its 
extent  can  be  measured  only  by  the  words  in  which  it  is  con- 
ceived. A  partnership  debt  has  been  treated  in  equity  as  the 
several  debt  of  each  partner,  altliough  at  law  it  is  only  the 
joint  debt  of  all.  But  then  all  the  partners  have  had  a  benefit 
from  the  money  or  the  credit  given  ;  and  the  obligation  of  all 
to  pay  exists  independently  of  any  instrument  by  which  the 
debt  may  have  been  secured.  So,  where  a  joint  bond  has 
in  equity  been  considered  as  several,  there  has  been  a  credit 
previously  given  to  the  different  persons  who  have  entered 
into  the  obligation.  It  is  not  the  bond  that  first  created  the 
liability." 

It  is  upon  the  same  ground  that  a  court  of  equity  will  not 
reform  a  joint  bond  against  a  mere  surety,  so  as  to  make  it 
several  against  him,  upon  the  presumption  of  a  mistake  from 
the  nature  of  the  transaction ;  but  it  will  require  positive 
proof  of  an  express  agreement  by  him  that  it  should  be 
several,  as  well  as  joint.''  So  where  an  obligee  of  a  joint  and 
several  bond  elected  to  take  a  judgment  against  all  the 
obligors,  and  thus  at  law  lost  his  right  of  a  several  remedy, 
a  court  of  equity  refused  him  a  remedy  against  the  personal 
assets  of  a  deceased  obligor,  who  was  only  a  surety.^  So  also 
in  cases  where  the  obligation  or  covenant  is  purely  matter  of 
arbitrary  convention,  not  growing  out  of  any  antecedent 
liability  in  all  or  any  of  the  obligors  or  covenantors  to  do 
what  they  have  undertaken  (as,  for  example,  a  bond  or  cove- 
nant of  indemnity  for  the  acts  or  debts  of  third  persons),  a 


» 2  Mer.  36.  '  United  States  v.  Price,    9    How. 

*  lb.i  Rawstone  v.  Parr,  3  Russ.  539.      (Amer.)  83. 


MISTAKE.  427 

court  of  equity  will  not  by  im2)licatioii  extend  the  responsi- 
bility from  that  of  a  joint  to  a  joint  and  several  nndertaking.^* 
But  if  there  be  an  express  agreement  to  the  effect  that  an  ob- 
ligation or  other  contract  shall  be  joint  and  several,  or  to  any 
other  effect,  and  it  is  omitted  by  mistake  in  the  instrument,  a 
court  of  equity  will,  under  such  circumstances,  grant  relief  as 
fully  against  a  surety  or  guarantee,  as  against  the  principal 
party  .^  f 

The  equity  for  rectification  on  presumptive  evidence  is 
applied  also  to  a  mortgage  by  husband  and  wife  of  the  wife's 
estate,  which  has  limited  the  equity  of  redemption  to  the 
husband.  If  the  instrument  does  not  recite  an  intention  to 
do  more  than  make  a  mortgage,  the  presumption  is  that 
nothing  more  was  intended;  and  the  instrument  will  be 
reformed  by  restoring  the  equity  of  redemption  to  the  wife. 
And,  in  like  manner,  it  is  held  that  if  a  lease  be  made  by  a 
tenant  for  life,  under  a  power  created  by  a  settlement,  and 
a  rent  reserved  to  the  lessor  and  his  heirs,  these  words  shall 
be  interpreted  by  the  prior  title,  and  applied  to  the  re- 
mainderman under  the  settlement,  and  not  the  heir  of  the 
lessor.^ 

The  principle  upon  which  the  court  reforms  and  corrects 
an  instrument  on  the  ground  of  mistake,  will  not  apply  in  a 
case  in  which  a  matter  has  been  completely  overlooked  on 
both  sides ;  and  the  agreement  is  a  substantial  agreement, 
which  speaks  in  sufficiently  clear  terms  for  itself,  and  contains 
no  reference  to  any  other  instrument,  or  to  any  pre-existing 

'  Sumner  v.  Powell,  2  Mer,  36,  37 ;  2  Mer.  36 ;  Rawstone  v.  Parr,  3  Russ. 

Clarke  v.  Bickers,  14  Sim.  639.  539. 

"  Crosby  v.  Middleton,  Prec.  Ch.  309;  '  Innes  v.  Jackson,  1  Bligli,  l(i4, 114; 

2  Eq.  Ca.  Ab.   188;  Sumner  v.  Powell,  Clark  v.  Burgh,  2  Coll.  221. 


*  "Warb  V.  Webber,  1  "Wash.  274 ;  Harrison  v.  Mirgc,  2  Wash.  130. 
t  Berg  V.  Radcliffe,  6  Johns.  Ch.  302  ;  Wiser  v.  Blackley,  1  Johns.  Ch. 
607. 


428  MISTAKE. 

relation  ;  ^  or  in  a  case  where  the  instrument  is  in  accordance 
with  the  expressed  intention  of  the  parties,  and  has  been 
prepared  with  full  knowledge  of  their  rights,  but  has  failed 
onlj  because  the  parties  have  been  ill-advised  as  to  the  way  of 
giving  effect  to  their  intention.^  *  !N^or  will  the  court  make  a 
settlement  conformable  with  what  it  is  alleged  it  would  have 
been  if  all  the  material  points  had  been  present  to  the  minds 
of  the  parties  at  the  time  thej  executed  it.^  Nor  will  the 
court,  under  the  name  of  rectiiication,  add  to  the  agreement  a 
term  which  had  not  been  determined  upon,  or  was  not  agitated 
between  them.  There  can  be  no  rectification  if  the  agreement 
executed  is  in  accordance  with  the  proposals.'*  Xor  can  there 
be  rectification,  if  it  was  by  the  intention  of  the  parties  that 
the  written  instrument  did  not  comprise  all  the  terms  of  the 
actual  agreement.^ 

Though  the  court  will  rectify  an  instrument  which  fails 
through  some  mistake  of  the  draughtsman  in  point  of  law  to 
carry  out  the  real  agreement  between  the  parties,*  it  is  not 
sufficient,  in  order  to  create  an  equity  for  rectification,  that 
there  has  been  a  mistake  as  to  the  legal  construction,  or  the 
legal  consequences  of  an  instrument.  The  proper  question 
always  is,  not  what  the  document  was  intended  to  mean,  or 
how  it  was  intended  to  operate,  but  what  it  was  intended  to 
be.  For  example,  where  an  annuity  had  been  sold  by  the 
plaintiff,  and  was  intended  to  be  redeemable,  but  it  was 
agreed  that  a  clause  of  redemption  should  not  be  inserted  in 

»  Parker  v.  Taswell,  2  D.  &  J.  559.  *  Lord  Irnham  v.  Child,  1  Bro.  C.  C. 

•  Farr  v.  SherifFe,  4  Ha.  513.  92;  Lord  Portmore  v.  Morris,  2  Bro.  C. 
'Barrow  v.  Barrow,  IS  Beav.    534;       C.  219;  Lord  Townshend  v.  StangrooTn, 

Wilkinson  v.  Nelson,  7  Jur.  N.  S.  481.  6  Ves.  332  ;  Harbidge  v.  Wogan,  5  Ha. 

See  Hills  v.  Rowland,  4  D.  M.   <fe  G.  258. 

430.  8  Wake  v.  Harrop,  1  H  <fe  C.  202, 

*  Elwes  V.  Elwes.  3  D.  F.  <fe  J.  667. 


*  Hunt  V.  Rousmanier,  1  Pet.  1 ;  Durant  v.  Bacot,  3  Beasley,  201, 


MISTAKE.  429 

the  deed,  because  both  parties  erroneously  supposed  tliat  its 
insertion  would  make  the  transaction  usurious,  it  was  held 
that  the  omission  could  not  be  supplied  in  equity,  for  the 
court  was  not  asked  to  make  the  deed  what  the  parties  in- 
tended, but  to  make  it  that  which  they  did  not  intend,  but 
which  they  would  have  intended  if  they  had  been  better 
informed.^  So  also  where  a  party  making  a  voluntary  deed 
supposes  that  he  will  have  a  power  of  subsequent  revocation, 
though  no  such  j)ower  is  reserved,  the  deed  cannot  after- 
wards be  rectified  by  inserting  the  power,  the  evidence 
merely  showing  that  the  power  had  been  omitted  under  the 
erroneous,  belief  that  it  was  not  necessary  to  insert  it,  not  that 
the  power  was  intended  to  be  inserted,  but  was  left  out  by 
mistake.^ 

I^or  can  there  be  rectification,  although  both  parties  may 
have  been  under  a  mistake,  if  the  mistake  be  in  respect  of  a 
matter  materially  inducing  the  agreement,' 

The  court  will  not  rectify  a  voluntary  deed,  unless  all  the 
parties  consent.  If  any  object,  the  deed  must  take  its  chance 
as  it  stands.*  I^or  can  a  voluntary  deed  be  reformed,  except 
with  the  consent  of  the  settler,  if  it  fails  to  carry  out  the 
intention  of  the  parties.  A  voluntary  deed  may,  however,  be 
set  aside  after  the  death  of  both  donor  and  donee,  if  there  is 
evidence  to  show  that  the  donee  complained  of  the  deed  and 
took  steps  to  annul  it.^ 

The  court  will  not  reform  a  deed  or  instrument  upon 
petition  or  motion,  but  only  upon  a  regular  bill  for  that  pur- 
pose ;  and  until  a  deed  or  instrument  is  reformed,  the  court  is 
bound  to  act  upon  it  as  it  exists.* 

If  parties  enter  into  an  agreement  conditionally,  and  in 


'  Irnham  v.  Child,   1  Bro.  C.  C.   92;  *  Brown  v.  Kennedy,  33  Beav.  133. 

Townslieiul  v.  i^tiingroom,  6  Vcs.  328.  *  I'liilipson  v.   Kerry,  32  I)(  av.  628. 

*  Worrall  v.  Jacob,  3  Mer.  270.  See  Co.x  v.  Bruton,  5  VV.  R.  0-14. 
'  Carpmael  v.  Powis,  10  Beav.  86.  •  He  Malet,  30  Beav.  407. 


430  MISTAKE. 

contemplation  of  or  with  reference  to  a  supposed  actual  state 
of  things,  and  it  turns  out  that,  by  the  mutual  mistake  of  the 
parties,  the  supposed  actual  state  of  things  does  not  in  fact 
subsist,  the  consideration  for  the  agreement  fails,  and  the 
agreement  is  consequently  void  as  well  at  law  as  in  equity.^ 
A  conlract,  for  instance,  for  the  sale  of  a  cargo,  supposed  by 
both  parties  to  be  on  board  a  particular  ship,  is  at  end  if  the 
cargo  had  at  the  time  ceased  to  exist.^  So  also  a  contract  for 
the  sale  of  an  annuity,  during  the  life  of  a  person,  is  condi- 
tional upon  his  being  alive  at  the  time  of  the  sale  ;  so  that  he 
having  previously  died,  and  purchase-money  having  been 
paid  in  ignorance  of  the  fact,  the  sale  is  void,  and  the  pur- 
chaser is  entitled  to  recover  back  his  money.^  So,  also,  where 
a  policy  of  insurance  was  renewed  during  the  days  of  grace 
allowed  after  the  expiration  of  the  policy  and  acceptance  of 
the  premiums,  both  parties  being  ignorant  that  the  life 
insured  had  previously  died  during  the  days  of  grace,  it  was 
held  that,  the  renewal  being  conditional  upon  the  insured 
being  then  alive,  it  was  void/  So  also  where  an  agreement 
was  made  for  the  sale  of  a  remainder  in  fee  expectant  on  an 
estate  tail,  and  a  bond  was  given  to  secure  the  purchase- 
moneys  ;  but  it  appeared  that  at  the  time  of  the  sale  the  tenant 
in  tail  had  suffered  a  recovery  and  destroyed  the  remainder, 
of  which  both  parties  were  ignorant,  the  agreement  was  held 
void,  and  the  bond  was  cancelled,  upon  the  ground  that  the 
parties  had  contracted  upon  the  supposition  that  a  recovery 
had  not  then  been  suffered.®  So  also  where  an  agreement 
was  made  between  the  assignee  of  the  tenant  for  life  of  an 
estate  and  the  person  entitled  in   remainder,  respecting  the 

*  See  Stnpylton   v.    Scott,    13   Ves.  ^  Strickland  v.  Turner,  7  Exch.  208. 

42*7;   Robinson  v.  Dickenson,  3  Russ.  ■•  Pritchard    v.   Merchants'    Life    In- 

413;  Cooper  v.  Phibbs,  L.  R.  2  App.  sur  nee  Society,  3  C.  B.  N.  S.  622. 
Ca.  149.  '  Hitchcock  v.  Giddings,  4  PrL  135. 

=  Couturier  v.  Hastie,  9  Exch,  102,  5 
H.  L.  673. 


MISTAKE.  431 

timber  on  the  estate,  under  tlie  supposition  that  the  tenant  for 
life  was  then  alive  and  entitled  to  cut  the  timber,  hut  he  was 
in  fact  then  dead,  it  was  held  that  the  agreement  was  void, 
both  in  equity  and  at  law.^  So  also  where  a  fund  was  settled 
on  two  persons  for  life,  with  benefit  of  survivorshij)  between 
them,  and  one  of  them  sold  his  reversionary  interest ;  but  it 
turned  out  that  at  the  time  of  the  sale  the  other  person  was 
dead,  so  that  the  interest,  which  was  supposed  to  be  a  rever- 
sionary one,  had  become  an  interest  in  possession,  and  the 
fact  was  unknown  to  both  parties,  it  was  held  that  the  sale 
could  not  stand.^  So  also  where  a  party  having  a  claim  upon 
another  party,  discharged  the  executors  of  the  latter  after  his 
death  from  all  claims,  and  there  was  a  recital  in  the  deed  of 
release,  that  the  party  deceased  had  before  his  death  possessed 
himself  of  a  certain  fund,  which  had  been  set  apart  to  secure 
the  claim,  the  release  was  set  aside  on  it  turning  out  that  the 
recital  was  false,  and  that  the  fund  had  been  paid  in  by  him 
to  a  bank.^  So  also  where  a  party  had,  upon  a  compromise, 
executed  a  general  release  in  respect  of  partnership  matters,  it 
was  held  that  he  was  entitled  to  relief,  on  the  ground  of  a 
large  item  in  which  he  was  interested  having  been  omitted  by 
mistake  in  the  account.* 

Similar  considerations  apply  where  a  vendor,  through 
innocent  mistake,  makes  a  misrepresentation  as  to  the  subject- 
matter  of  the  sale.  If  the  subject-matter  of  the  sale  is  so 
difierent  in  substance  from  what  it  was  represented  to  be  as  to 
amount  to  a  failure  of  consideration,  the  agreement  will  be  set 
aside.^ 

So  also  if  the  vendor,  in  fixing  the  price,  has  altogether 
relied  on  information  furnished  to  him  by  the  purchaser,  and 


'  Cochrane   v.   Willis,  L.   R.  1    Ch.  *  Pritt  v.  Clay,  6  Bcav.  503. 

App.  58.  '  Sajira,  p.  15,  24;  Earl  of  Durham 

*  Colyer  v.  Clay,  7  Bpav,  188.  v.  Legard,  34  Beav.  611. 

'  Horc  V.  Becher,  12  Sim.  4G5. 


432  MISTAKE. 

8ucli  information  turns  out  to  have  been  (even  unintentionally) 
incorrect,  this  may  entitle  the  vendor,  even  after  conveyance, 
to  relief  in  equity.^ 

But  a  contract  may  be  unconditional,  although  the  parties 
are  under  a  mistake  respecting  some  matter  which  induces 
the  contract.  Thus,  if  the  contract  be  absolute,  and  not  with 
reference  to  collateral  circumstances,  as,  for  instance,  if  a  ship 
on  a  voyage  be  sold,  and  the  ship,  at  the  time  of  the  contract, 
be  seriously  damaged,  to  the  ignorance  of  both  parties,  still 
the  contract  is  valid.^ 

So  also  although  there  be  a  mutual  mistake  respecting  the 
subject-matter  of  the  agreement,  yet  if  both  parties  are  aware 
that  the  subject-matter  is,  from  its  nature,  doubtful  or  uncer- 
tain, or  is  of  a  speculative  or  contingent  character,  the  mistake 
goes  for  nothing  either  at  law  or  in  equity.  A  contract  for 
the  sale  of  a  thing,  the  extent  or  value  of  which  is  understood 
to  be  unknown  to  both  parties,  or  which  is,  from  its  nature  or 
character,  doubtful  or  uncertain,  is  valid  and  binding.'  If  a 
bargain  depends  on  a  contingent  event,  or  the  subject-matter 
of  a  contract  be  an  uncertain  thing,  and  the  contingency  or 
chance  be  known  to  both  parties,  neither  of  them  can  resist 
specific  performance  because  the  reality  has  tm'ned  out  to  be 
different  from  what  he  anticipated.* 

There  is  mutual  mistake  which  will  vitiate  a  contract,  or 
which  at  least  will  render  it  incapable  of  being  specifically 
enforced  in  equity,  if  the  one  party  does  not  think  he  is 
selling  what  the  other  thinks  he  is  buying.^ 

Care   must,   however,   be   taken    in   distinguishing  cases, 

'  Carpmael  v.  Powis.  10  Beav.  36.  156  ;  Baxendale  v.  Scale,  19  Beav.  601. 

«  Barr  v.  Gibson,  3  M.  &  W.  390.  See  Monro  v.  Taylor,  3  Mac.  &  G.  718. 

'Mortimer  v.  Capper,  1  Bro.  C.  C.  'Hitchcock  v.  Giddings,  4  Pri.  135; 

156;    Ridgway  v.    Sneyd,  Kay,    627;  Cochrane  v.  Willis,  L.  R.  1;  Ch.  App. 

Baxendale  )'.  Seale,  19  i3eav.  601.    See  58;   Butterworth  «;.    Walker,    13    \V. 

Davi3  V.  Shepherd,  L.  R.  1  Ch.  App,  R.  168;  Baxendale?^.  Seale,  19  Beav. 

410.  601. 

*  Mortimer  v.  Capper,  1  Bro.  C.  C. 


MISTAKE.  433 

where  the  parties  are  under  a  mutual  mistake  as  to  the 
subject-matter  of  a  contract,  from  cases  where  there  is  no 
doubt  as  to  the  subject-matter ;  but  the  one  has,  in  fact,  sold 
more  than  he  thought  he  was  selling,  and  the  other  has  got 
more  than  he  expected.  In  such  cases  relief  cannot  he  had  in 
equity,  if  there  has  been  no  unfairness  on  either  side.^  Where, 
for  instance,  that  which  the  vendor  intended  to  sell,  and  the 
purchaser  to  buy,  was  a  leasehold  interest,  erroneously  sup- 
posed to  have  a  shorter  time  to  run  than  it  in  fact  had  to  run, 
it  was  held  that  the  vendor  had,  after  conveyance,  no  equity 
for  relief^  So  also  where  a  man  entitled  to  an  interest  in  a 
residuary  estate,  assigns  all  his  interest  to  a  creditor,  he  is  not 
entitled  to  relief  if  it  afterward  appear  that  the  residuary 
estate  consisted  partly  of  a  fund,  the  existence  of  which  was 
not  known  to  either  of  the  parties  at  the  time  of  the  execution 
ofthedeed.8 

]^or  where  several  persons  have  joined  in  conveying  an 
estate  to  a  purchaser  for  a  full  consideration,  can  one  of  them 
be  afterward  heard  to  say  that  he  was  under  a  misapprehen- 
sion as  to  the  extent  of  his  interest  in  the  property/ 

The  same  considerations  which  apply  to  the  case  of  agree- 
ments entered  into  under  a  mutual  mistake  of  the  parties  as  to 
fact,  apply  to  the  case  of  compromises.  A  compromise  which 
is  founded  on  a  mutual  mistake  of  fact  cannot  be  supported. 
If,  for  instance,  a  compromise  is  founded  on  the  genuineness 
of  an  instrument  which  turns  out  to  be  forged,  or  if  a  suit 
which  it  is  the  object  of  a  compromise  to  determine,  turns  out 
to  have  been  already  decided  in  favor  of  one  of  the  parties,  or 
if  a  compromise  be  founded  on  a  will,  which  turns  out  to  have 
been  revoked  by  another  will  of  which  the  parties  are  ignorant, 

*  O'Neill  V.  "Wiiittaker,  1  Deg.  &  Sm.       372 ;  Comp.  Grieveson   v.    Kirsopp,  5 
83,  2  Ph.  338.  Beav.  287. 

•^  lb,  "  Maiden  v.   Mcnill,   2   Atk.  8.     See 

•  Uowkins  v.  Jackson,  2  Mac.  &  G.       Marsliall   v.   Collett,   1   Y.  «fe  C.  232; 

Evans  v,  Jones,  Ivay,  29. 


434  MISTAKE. 

tlie  transaction  cannot  be  supported.^  But  the  case  is  different 
if  the  fact  in  respect  of  which  there  is  a  mistake  be  incliided 
in  the  compromise,  and  be  not  .the  very  foundation  on  which 
the  compromise  rests.^  If  one  or  more  parties  having,  or  sup- 
posing they  have,  claims  upon  a  given  subject-matter,  or  claims 
upon  each  other,  agree  to  compromise  those  claims,  and  to 
come  to  a  general  settlement  of  the  matters  in  dispute  between 
them  without  resorting  to  litigation,  and  they  act  with  good 
faith,  and  stand  on  an  equal  footing,  and  have  equal  means  of 
knowledge  as  to  the  facts,  the  compromise  is  binding  in 
equity.^  It  is  not  enough  to  invalidate  the  transaction  that 
one  of  the  parties  may  have  been  in  error  as  to  a  fact  included 
in  it.  A  compromise  cannot,  however,  be  supported,  unless  it 
is  fairly  entered  into,  and  after  due  deliberation.* 

The  principles  which  apply  to  the  case  of  ordinary  com- 
promises between  strangers,  do  not  equally  apply  to  the  case 
of  compromises  in  the  nature  of  family  arrangements.  Family 
arrangements  are  governed  by  a  special  equity  peculiar  to  them- 
selves, and  will  be  enforced,  if  honestly  made,  although  they 
have  not  been  meant  as  a  compromise,  but  have  proceeded 
from  an  error  of  all  parties,  originating  in  mistake  or  ignorance 
of  fact  as  to  what  their  rights  actually  are,  or  of  the  points  on 
which  their  rights  actually  depend.^ 

Where  an  agreement  is  capable  of  being  applied  to  different 


•Tonll.  Cod.  Cid.  Liv.  3,  tit.  3,  c.  2.  Lavall^e,  15  Moo.  P.  C.  270;  Staintoa 

See  Asliurst  v.  Mill,  7  Ha.  502;  Lawton  v.  Carron  Co.,  30  L.  J.  Ch.  713,  supra, 

V.  Campion,    18   Beav.   87;  Trigge  v.  p.  79,  336. 
Lavallee,  15  Moo.  P.  C.  276.  ••  Scott  v.  Scott,  11  Ir.  Eq.  75. 

'  See  Trigge  v.  Lavallee,  15  Moo.  P.  '  Stockley  v.  Stockley,  1  V.  A  B.  23; 

C.  276.  Dunnage  y.' White,  1  Sw.  137;  Gordon 

'  Attwood  V.  ,  1  Russ.   353;   5  ?;.  Gordon,  3  Sw.  400;  Neale  ?\  Neale,  1 

Russ.  149;  Roche  v.  O'Brien,  1  Ba.  &,  Keen,  072;  Westby  v.  Westby,   2  Dr. 

Be.  330;  Leonard  v.  Leonard,  2  Ba.  &  &  War.  502;  Stewart  v.  Stewart,  6  CL 

Be.  171 ;  Naylor  v.  Winch,  1  Sim.  &  St.  &,  Fin.  911 ;  Persse  v.  Persse,  7  CI.  & 

555;  Pickering  «>.  Pickering,  2  Beav.  31,  Fin.  279;  Houghton  v.   Lees,  1  Jar.  N. 

56;  Pritt  v.   Clay,  6  Beav.  503;  Stew-  S.  862;   Williams  v.  Williams,  2  Dr.  & 

art  V.  Stewart,  6  Cl.  &  Fin.  911 ;  Davis  Sm.  378. 
V.  Chanter,   3   W.   R.   321;  Trigge  v. 


MISTAKE.  435 

things,  or  in  different  ways,  and  is  accepted  by  eacli  party  witli 
a  different  application,  there  is  no  real  agreement  between 
them,  and  consequently  no  contract.^  If  the  one  party  in- 
tends to  sell  upon  one  set  of  terms,  and  the  other  party  intends 
to  buy  upon  a  different  set  of  terms,  and  the  contention  of 
either  party  is,  under  the  circumstances  of  the  case,  reasonable, 
there  is  in  reality  no  contract  between  them,  or,  at  least,  not 
such  a  contract  as  a  court  of  equity  will  specifically  enforce.*^ 

It  is  not  competent  to  a  party  to  an  agreement  to  assert  an 
application  of  the  agreement  inconsistent  with  the  terms 
agreed  upon  as  expressing  the  common  intention ;  but  he  is  at 
liberty  to  show  that  it  was  understood  by  him  to  apply  in  a 
manner  consistent  with  its  terms,  but  different  from  the  ap- 
plication accepted  by  the  other  party .^  In  such  case,  the 
agreement  is  said  to  contain  a  latent  ambiguity,  or  one  which 
appears  only  in  the  course  of  applying  it.'*  A  latent  ambiguity 
is  where  it  is  shown  that  words  equally  apply  to  two  different 
things  or  subject  matters,  and  then  evidence  is  admissible  to 
show  which  of  them  was  the  thing  or  subject-matter  in- 
tended.^ 

"What  is  called  a  patent  ambiguity,  that  is,  a  doubt  or  un- 
certainty appearing  in  the  terms  of  the  agreement  as  expressed 
by  the  parties  themselves,  cannot  be  altered  or  explained  by 
extrinsic  evidence ;  and  if  it  is  incapable  of  a  rational  inter- 
pretation, the  agreement,  at  least  to  the  extent  of  the  ambi- 
guity, is  necessarily  void.® 

The  application  for  relief  on  the  ground  of  mistake  must 


*  Leake  on  Contracts,  p.  178.     See  '  Leake  on  Contracts,  p.  173. 

Falck  V.  Gooch,  4  F.  <fe  F.  589,  591;  *  lb. 

West  V.  De  Wezele,  ib.  596.  599.  '  Smith  v.  Jeffryes,  15  M.  &  W.  561. 

'  Higginson  v.  Clowes,  15  Ves.  516;  562,  per  Alderson,  B.    See   Ruffles  v. 

Clowes  V.  Higgiiison,  1  V.  <fe  B.  524 ;  Wichelhaus,  2  H.  &  C.  906. 

Neap  V.  Abbott,   1   C.    P.    Coop.  temp.  '  See  Coles  v.  Hulme,  8  B.  &  C.  568: 

Cott.  382,  383;  Baxeudale  v.  Scale,  19  Alder  v.  Boyle,  4  C.  B.  635. 
Beav.  601. 


436  MISTAKE. 

be  made  witli  due  diligence.^    In  cases  of  mistake,  as  in  cases 
of  frand,  time  runs  from  the  discovery.^ 

The  jurisdiction  to  relieve  against  mistake  being  an  equit- 
able one,  it  is  exercised  upon  equitable  principles.  Transac- 
tions, although  impeachable  on  the  ground  of  mistake,  are 
nevertheless  subject  to  all  real  and  just  equities  between  the 
parties.  The  court  will  not  set  aside  a  transaction  without 
restoring  the  party  against  whom  it  interferes,  as  far  as  possi- 
ble, to  that  which  shall  be  a  just  situation  with  reference  to  the 
rights  which  he  had  antecedently  to  the  transaction.^  If  the 
court  sees  that  it  can  restore  the  parties  to  their  former  condi- 
tion, or  place  them  in  the  same  situation  in  which  they  would 
have  stood  but  for  the  mistake,  without  interfering  with  any 
new  right  acquired  by  others,  on  the  faith  of  the  altered  con- 
dition of  the  legal  rights,  the  jurisdiction  will  be  exercised.^ 
A  court  of  equity  will  not,  however,  relieve  against  a  mistake, 
unless  it  is  fully  satisfied  that  it  can  make  ample  compensation.^ 
If  the  court  sees  that  the  parties  cannot  be  restored  to  that 
which  shall  be  a  just  situation  with  reference  to  the  rights 
which  they  had  antecedently  to  the  transaction,  or  that  the 
mistake  cannot  be  corrected  without  breaking  in  upon,  or 
affecting  the  rights  of  innocent  parties,  who  were  not  aware  of 
the  existence  of  the  mistake,  when  their  rights  accrued,  relief 
cannot  be  given.'  As  against  l)07id  fide  purchasers  for  value 
without  notice,  no  relief  can  be  had  in  equity.^    But  if  lands 


'  Beaumont  v.  Bramley,  T.  <fe  R.  43 
Denj-s  V.  Slmckburgh,  4  Y.  <fe  G.  53 
Stone  V.  Godfrey,  5  D.  M.  &  G.  76 


Dacre  v.  Gorges,  2  Sim.  &  St.  454 ;  su- 
pra, p.  295. 

"  Maiden  v.  Menill,  2  Atk.  8 ;  Clifton 


Bentley  v.  Mackay,  31  Beav.  143;  31  v.  Cockburn,  3  M.  &  K  76;  Blatkie  v. 

L.  J.  Ch.  709;  supra,  p.  241.  Clark,  15  Beav.  595  ;  Re  Saxon  Life  In- 

^  Brooksbank  v.   Smith,  2  Y.  &  Co.  surance  Co.,  2  J.  &  H.  408 ;  Bateman  v. 

60 ;  snpra,  p.  247.  Boynton,  L.  11.  1  Ch.  App.  359  ;  mpra, 

'  Supra,  p.  276.  p.  249.     Comp.   Broughtoa  v.  llutt,   3 

*  M'Alpine  v.  Swift,  1  Ba.  &  Be.  293;  D.  <fe  J.  501.     See,  also,  Domat.  Liv.  1, 

Dacre  v.  Gorges,  2  Sim.  &  St.  454.  See  tit.  18,  s.  1,  art.  13-17. 
Millar  ?'.  Craig,  6  Beav.  433;  I\kadows  "  Maldeu  v.  Menill.  2  Atk.  8;  War- 

?;.  Meadows,   16  Beav.  404;  Scliolfield.  rick  i).  Warrick,  3  Atk.  293;  suj}ra,T^. 

V.  Templcr,  John.  165.  249. 

»  Macalpice  v.  Swift,  1  Ba.  &  Be.  293 ; 


MISTAKE.  437 

eliown  to  a  purchaser  are  accepted  in  the  conveyance  under  a 
name  by  wliicli  lie  did  not  know  them,  he  may,  by  getting  in 
an  outstanding  legal  estate,  hold  them,  even  as  against  a  sub- 
sequent purchaser  for  valuable  consideration,  and  without 
notice.^ 

If  the  subject-matter  of  the  transaction  be  real  estate, 
and  there  has  been  a  conveyance,  a  reconveyance  "vrill  be 
ordered,  if  a  case  be  made  out  for  the  interference  of  the 
com-t,''  * 

On  setting  aside  a  transaction  on  the  ground  of  mistake, 
the  court  may,  with  the  view  of  putting  the  parties  in  the 
position  in  .which  they  have  an  equity  to  stand,  annex  condi- 
tions to  the  decree.  In  a  case,  for  example,  where,  by  a  mis- 
take in  drawing  up  an  instrument,  the  rent  named  as  payable 
upon  the  lease  of  premises  was  considerably  less  than  the 
amount  actually  agreed  upon  between  the  parties,  and  the  mis- 
take was  known  to  one  of  the  parties  at  the  time  of  the  execu- 
tion of  the  instrument,  but  not  to  the  other,  the  court  gave 
the  lessee  an  election  to  continue  in  the  tenancy,  on  consenting 
to  pay  the  amount  of  rent,  which  ought  to  have  been  inserted 
in  the  instrument,  or  to  abandon  the  lease,  and  pay  for  use 
and  occupation  during  the  period  he  had  been  in  possession  of 
tlie  premises  at  the  higher  rate,  being  compensated  for  all 
repairs  of  a  permanent  character,  but  not  for  the  expense  of 
taking  possession  of  the  premises  and  establishing  himself  in 

'  Oxwick  V.  Brockett,  1  Eq.  Ca,  Ab.  v.  Malmesbury,  31  Beav.  418,  supra,  p. 

855.  277,  278.     See  as  to  terms  of  reconvey- 

*  Cox  V.  Bruton,  5  W.  R.  544  ;  Leuty  ance,  supra,  pp.  278-282 
V.  Hillas,  2  D.  &  J.  120;  Malmesbury 


*  A  court  of  equity  alone  can  reform  a  written  instrument.  However  a 
mistake  may  have  been  induced,  it  can  find  no  recognition  until  tlie  con- 
tract has  been  reformed  and  made  to  conform  to  the  real  intention  of 
the  pai-ties.  Boyer  v.  Wilson,  33  Md.  122 ;  Holmes  v.  Barker,  3  Johns. 
506. 


438  MISTAKE. 

business.  It  was  also  held  that  the  lessor  was  responsible  to 
refund  the  moneys  advanced  to  the  lessee  upon  the  security  of 
the  lease,  with  costs;  the  lessee  being  liable  over  to  the 
lessor  for  repayment  of  the  same,  on  the  ground  that,  if  the 
lease  were  rejected,  the  premises  must  stand  as  a  security 
for  the  money  so  advanced ;  and  if  the  lease  was  accepted,  it 
was  primarily  liable  for  the  repayments  of  the  same  to  the 
lessor.^ 

Courts  of  equity  have  jurisdiction  on  the  ground  of  mis- 
take to  relieve  against  the  defective  execution  of  a  power.  If 
the  formalities  required  by  a  power  are  not  strictly  complied 
with,  an  appointment  under  the  power  is  invalid  at  law, 
and  the  property  which  is  the  subject  of  the  power  will  go  as 
in  default  of  appointment.  In  equity,  however,  if  an  inten- 
tion to  execute  the  power  be  sufficiently  declared,  but,  by 
reason  of  some  informality,  the  act  declaring  the  intention 
is  not  an  execution  of  the  power,  the  court  will,  in  favor 
of  certain  parties,  aid  the  defective  execution,  by  compelling 
the  person  seised  of  the  legal  estate  to  do  that  which  was 
intended  to  be  done.^  The  supplying  the  surrender  of  a 
copyhold,  and  the  supplying  the  execution  of  a  power  which 
is  defective  in  form,  go  hand  in  hand.  "Wherever  there  is 
a  decision  that  the  court  will  supply  a  surrender,  it  follows 
that  the  conrt  will  also  supply  the  defective  execution  of  a 

power.^ 

The  powers  to  which  the  equity  extend  are  those  which 

have  been  created  by  way  of  use,  as  distinct  from  bare  author- 
ities conferred  by  law.  Acts  done  under  authorities  of  this 
latter  kind — as,  for  example,  leases  or  conveyances  by  a  tenant 
in  tail — are  only  binding  when  regular  and  complete.     The 

'  Garrard  V.  Franlcel,  30  Beav.  445.  ^  Sayer  v.   Sayer,   7  Ha.   387;   per 

"  Chapman  v.   Gibson,  3  Ero.  0.  C.  Wigrain,  V.-C. ;  Chapman  v.  Gibson,  3 

229 ;  Shannon  v.  Bradstreet,  1  8ch.  &  Bio.  C.  C.  229. 

Lef.  G3 ;  Sayer  v.  Sayer,  7  Ha.  377. 


MISTAKE.  439 

principle  of  the  distinction  appears  to  be,  that  powers  limited 
by  use  are  mere  reservations  out  of  the  original  ownership, 
constituting  the  donee  a  quasi  owner,  and  the  remainderman 
a  quasi  heir ;  and,  consequently,  that  in  conformity  with  this 
hypothesis,  the  donee's  contracts  for  value  ought  to  bind  the 
remainderman,  and  his  meritorious  intention,  if  unaltered, 
ought  to  have  the  same  effect.^  The  soundness  of  this  equity 
has  been  questioned  by  Sir  "William  Grant,  and  its  principle 
seems  difficult  to  sustain.  For  the  power  given,  though 
doubtless,  in  some  sense,  a  modified  ownership,  does  not 
confer  an  absolute  right  to  dispose  of  the  property,  but  a  right 
to  do  so  in  a  specific  way ;  and  the  chance  that  the  power  may 
never  be  executed,  or  that  it  may  not  be  executed  in  the 
manner  prescribed,  is  an  advantage  given  to  the  remainder- 
man. If,  therefore,  his  interest  is  to  be  regarded,  it  is  difficult 
to  see  why  he  should  be  bound  by  any  other  than  the  prescribed 
act,  for  he  is  a  stranger  to  any  equity  between  the  donee  of  the 
power  and  the  party  in  whose  favor  it  is  intended*  to  be  exe- 
cuted. If,  on  the  other  hand,  his  interest  is  subordinate  to  the 
intention  of  the  donee  of  tlie  power,  the  intention  of  such 
donee  ought  to  be  sustained,  whatever  be  the  consideration  on 
which  it  rests.^ 

Whatever  opinion  may,  however,  be  entertained  as  to  the 
original  soundness  of  the  equity,  there  is  no  question  that  it 
is  established  by  precedent ;  but  it  is  confined  to  cases  of 
execution  formally  defective,  or  of  contract  amounting  to  such 
defective  execution.^*  If  there  be  no  such  execution  or  con- 
tract, the  court  cannot  interpose ;  for  unless  where  the  power 

'  Adams'  Doct.  Eq.  99.  »  Adams'  Doct.  Eq.  100. 

"Holmes  V.   Togliill,  7  Ves.  506;  12 
Ves.  200 ;  Adams'  Doct.  Eq.  99. 


*  Howard  v.  Carpenter,   11  Md.    239;   Lines  v.  Darden,   5  Fla.  51; 
Mitchell  V.  Denson,  39  Ala.  337;  Lii^pincott  v.  Stokes,  3  Halst.  Cli.  123. 


440  MISTAKE. 

is  in  the  nature  of  a  trust,  the  donee  lias  his  choice  whether  to 
execute  it  or  not ;  and  if  he  does  not  execute,  or  attempt  to 
execute,  there  is  no  equity  to  execute  it  for  him,  or  to  do  that 
for  him  which  he  did  not  think  fit  to  do  himself.^  ]^or  can 
an  execution  be  aided  in  equity,  if  the  defect  be  not  formal, 
but  in  the  substance  of  the  ]Dower,  for  such  aid  would  defeat 
the  intention  of  the  donor.  If,  for  example,  a  tenant  for  life 
has  power  to  lease  with  the  consent  of  trustees  or  others,  an 
agreement  by  the  tenant  for  life  alone  to  lease  will  not  be 
aided.^ 

The  only  persons  in  whose  favor  equity  will  interpose  to 
supply  the  defect  in  the  execution  of  a  power  are,  a  hond  fide 
purchaser  for  valuable  consideration,^  a  creditor,^  a  charity,'  a 
wife,  or  a  legitimate  child.®  To  no  other  persons,  except  a 
wife  and  legitimate  child,  will  the  aid  of  the  court  be  granted 
upon  the  ground  of  a  meritorious  consideration.''  The  equity 
does  not  extend  to  the  case  of  a  defective  execution  by  a  wife 
in  favor  of  her  husband ;  ^  nor  to  a  defective  execution  in 
favor  of  a  natural  child,  a  father,  mother,  brother,  sister, 
nephew,  or  cousin  :  d  fortiori  it  does  not  extend  to  a  voluu- 
■teer.® 

The  character  of  purchaser,  creditor,  wife,  or  child,  must 
be  borne  by  the  party  claiming  relief  in  relation  to  the 
donee  of  the  power  and  not  to  the  person  creating  the 
power.^" 

In  Wilkinson  v.  Kelson,"  a  deed  of  appointment  in  favor 
of  some  of  the  objects  of  a  power,  was  rectified  by  the  inser- 

•  Toilet  V.  Toilet,  2  P.  Wms.  489.  Medwin  v.  Sandham,  3  Sw.  686 ;  Proby 
'  Lawrenson  v.  Butler,  1  Sch.  &  Lef.       v.  Lander,  28  Beav.  504 ;  White  <fe  Tud- 

13.  L.  C.  vol.  I,  p.  211. 

=  Hughes  V.  Wells,  9  Ha.  769 ;  Affleck  '  Moodie  v.  Reid,  1  Madd.  516. 

V.  Affleck,  3  Sm.  <fe  G.  394  ;  Sug.  Few.  «  lb. 

533,534;  White  &  Tud.  L.  C.  Vol.  I,  p.  °  Sug-    Pow.    535,   and   cases  cited: 

209.  "White  <fe  Tud.  L.  C.  vol.  I,  212. 

"  Sug.  Pow.  533,  534.  "  Sug.  Pow.  537. 

'  Innes  v.  Sayer,  T  Ha.  STY.  "  7  Jur.  N.  S.  481. 

*  Hervey  v.   Hervey,    1   Atk.   567; 


MISTAKE.  441 

tion  of  a  hotchpot  chiuse,  the  court  being  satisfied  that  the  in- 
tention of  the  donee  of  the  power  was  to  produce  equality,  and 
that  the  clause  had  been  omitted  by  mistake. 

It  is  not  sufficient  in  order  to  constitute  a  case  entitling  a 
party  to  relief  in  equity  on  the  ground  of  the  defective  execu- 
tion of  a  power  that  there  should  be  a  mere  intention  on  the 
part  of  the  donee  to  execute  the  power,  without  some  steps 
taken  to  give  it  a  legal  effect.  Some  steps  must  be  taken  or 
some  acts  must  be  done  with  this  sole  and  definite  intention, 
and  such  steps  or  acts  mnst  be  properly  referable  to  an  inten- 
tion to  execute  the  power.^  A  mere  parol  promise  or  agree- 
ment to  execute  the  power  is  not  sufficient.^  *  But  if  an  in- 
tention to  execute  the  power  appears  clearly  by  some  paper  or 
instrument  in  writing,  equity  will  aid  a  defect  which  arises 
from  the  instrument  itself  being  informal  or  inappropriate ;  * 
as,  for  instance,  where  the  donee  of  a  power  covenants,*  or 
merely  enters  into  an  agreement,  not  under  seal,  to  execute 
the  power,^  or  when  by  his  will  he  desires  the  remainderman 
to  create  the  estate  authorized  by  the  power,^  or  if  he  promises 
by  letter  to  grant  an  estate  which  he  could  only  do  by  the  exer- 
cise of  his  power.'  In  all  these  and  the  like  cases  equity  will 
supply  the  defect.  So  also  a  recital  by  the  donee  of  a  power, 
in  the  marriage  settlement  of  one  of  his  daughters,  who  was 
one  of  the  objects  of  the  power,  that  she  was  entitled  to  a 
share  of  a  sum  to  which  she  could  only  be  entitled  by  his  ap- 
pointment, has  been  held  sufficient  evidence  of  his  intention  to 
execute  the  power,  so  as  to  be  aided  in  equity,^  and  even  an 

'  Sug.  Pow.  550,  551.  "Vernon  v.  Vernon,   Amb.  3;  Sug. 

*  Carter  v.  Carter,  Mose.  370;  Shan-       Tow.  550. 

non  V.  Bradstreet,  1  Sch.  <fe  Lef.  72.  '  Campbell  v.  Leach,  Amb.  740;  Sug. 

»  Bayer  v.  Sayer,  7  Ha.  377.  Pow.  550. 

*  Siig.  Pow.  550.  "  Wilson  v.  Piggott,  2  Ves.  Jr.  351. 
'  Shannon  v.  Bradstreet,    1  Sch.  <fe       See  Poulson  v.  Welling,  2  P,  Wms.  633 

Lef.  52;  Dowell   v.  Dew,  1  Y.  <fe  C.  C. 
C.  345     Sug.  Pow.  550. 


*  Mitchell  V.  Denson,  39  Ala.  327;  Barr  v.  Hatch,  3  Ohio,  537. 
29 


442  MISTAKE. 

answer  to  a  bill  in  eliancerj  stating  tliat  the  party  does  appoint 
and  intend  by  a  writing  in  due  form  to  appoint,  will  be  an 
execution  of  the  power  for  this  pnrjjose,'^  So  also  if  the 
power  ought  to  be  executed  by  deed,  but  it  is  executed  by  will, 
the  defective  execution  will  be  supplied.*^ 

The  like  rule  prevails,  wdiere  there  has  been  a  defective 
execution  of  a  power  by  a  formal  or  appropriate  instrument : 
as,  for  instance,  if  a  deed  be  required  by  the  power  to  be  exe- 
cuted in  the  presence  of  a  certain  number  of  witnesses,  and  it 
be  executed  in  the  presence  of  a  smaller  number  of  witnesses : 
or  if  it  is  required  to  be  signed  and  sealed,  and  sealing  is  omit- 
ted.^ In  wills  not  coming  within  the  operation  of  the  Wills 
Act,  1  Yict.  c,  26,  a  defect  in  the  execution  of  a  power,  con- 
sisting in  the  want  of  the  number  of  witnesses  required  by  the 
power,  was  supplied  in  equity/  But  the  power  to  assist  de- 
fective executions  of  appointments  within  the  statute  has 
ceased  as  to  wills  made  on  or  after  the  18th  January,  1838. 
The  validity  of  an  appointment  by  w411,  so  far  as  regards  exe- 
cution and  attestation,  now  wholly  depends  on  the  Statute 
Law.* 

.  Equity  will  in  no  case  aid  a  defective  execution  of  a  power, 
if  the  intention  of  the  person  creating  the  power  would  be 
thereby  defeated.  Although  a  power  will  be  aided,  if  it  has 
been  executed  by  a  will,  when  it  ought  strictly  to  have  been 
executed  by  deed,^  the  case  is  otherwise,  if  a  power,  required 
to  be  exercised  by  will,  has  been  executed  by  deed.'  The  in- 
tention of  a  poM'er  to  appoint  by  will  being  to  reserve  to  the 
donee  of  the  power  a  certain  control  over  the  estate,  until  the 


'  Carter  v.  Carter,  Moso.  365.  tino:  the  power,  22  <fe  23  Vict.  c.  35,  s. 

"  ToUet  V.  Toilet,  2  P.  Wms.  489,  12." 

«  Wade  V.  \\v;;ci,  1  Bro.  V.  C.  363;  '  W^ilkie  v.  Holmes,  1  Sch.  &  Lef.  60 

CoekereU  ?'.  Cliolmeley,  1  R.  tfe  M.  424.  n.;    Lucena  v.  Lucena,    5   Beav.    249; 

An  apjiointment  by  deed  is   now  ren-  Sug.  Pow.  547. 

dered  valid  in  many  cases,  altliough  not  '  Sug.  Pow.  p.  559. 

executed  or  attested  with  all  the  solera-  "Sxpra,  p.  .372. 

nities  required  by  the  iustrumeut  crear  '  Pieid  v.  Shergold,  10  Ves.  878,  380. 


MISTAKE.  443 

moment  of  the  deatli  of  the  clouee,  if  the  douee  of  such  a 
power  should  execute  an  appointment  or  a  conveyance  of  the 
estate  by  an  absolute  deed,  it  will  be  invalid,  because  such  an 
appointment  or  conveyance,  if  it  avail  to  any  purpose,  must 
avail  to  the  destruction  of  the  power,  since  it  would  be  no 
longer  revocable,  as  a  will  would  be.  The  distinction  between 
this  case  and  the  case  of  a  power  executed  by  will,  tliough  re- 
quired to  be  executed  by  deed,  is  marked  and  obvious.  An 
act  done  not  strictly  according  to  the  terms  of  the  power,  but 
consistent  with  its  intent,  may  be  upheld  in  equity.  But  an 
act  which  defeats  the  intention  of  the  person  creating  the 
power,  and  determines  the  control  over  the  property,  which 
was  meant  to  rest  in  the  donee,  is  repugnant  to  it,  and  cannot 
be  deemed  in  any  just  sense  to  be  an  execution  of  it.^ 

In  all  cases,  however,  where  the  aid  of  the  court  is  sought 
for  the  purpose  of  aiding  the  defective  execution  of  a  power, 
the  party  seeking  relief  must  stand  upon  some  equity  superior 
to  that  of  the  party  against  whom  he  seeks  it.*  There  can  be 
no  relief,  if  the  aid  of  the  defective  execution  would  be  in- 
equitable to  other  parties,  or  if  it  is  repelled  by  some  counter- 
equity  .^  As  against  a  purchaser  for  valuable  consideration 
without  notice,  equity  will  in  no  case  aid  the  defective  execu- 
tion of  a  power.^  But  as  against  a  remainderman,  who  takes, 
although  by  purchase,  subject  to  the  power,^  and  also  in  gen- 
eral as  against  an  heir-at-law  or  customary  heir,''  relief  may  be 
had  against  the  defective  execution  of  a  power.  Whether, 
however,  equity  will  afford  its  aid  as  against  an  heir  totally  un- 
provided for,  seems  doubtful  upon  the  authorities.' 

'  lb.,  Sug.  Pow.  560,  561.    See,  also,  » Toilet  v.  Toilet,  2   P.  "Wms.   489 ; 

Cockei-ell  v.  Cholmeley,  1  11.  &  Jl.  424 ;  Shannon  v.  Bradstreet,  1  Scli  .t  Lef.  52! 

2  E.  &  M.  751 ;  bat  see,  22  <fe  23  Vict.  "  ^^Hth  v.  Asliton,  1  Cli.  Ca.  263,  264. 

<=•  35,  8.  13.  '  Chapmaa  v.   Gibson,  3  Ero.  C.  C. 

"  Sug.  Pow.  541 ;   2  Chanc.  Pow.  502,  229;    Hills   v.   Downton,    5  Ves.    564; 

-504,  507.  Braddick    v.   Maftock,    6    Madd.    363; 

=  Supra,  pp.  366,  367.  .KodgcTS  v.  MarsliMll,  17  Ves.  294  ;  Sug. 

1  Foub.  Eq.  Bk.  1,  ch.  1,  s,  7,  n.  Pow.  545;   WLite  <fe  Tud.  L.  C.  vol  I, 

(4  pp.  212,  213. 


444  MISTAKE. 

In  cases  of  defective  execution  of  powers  a  distinction  exists 
between  powers  which  are  created  bv  private  persons,  and  those 
which  are  specially  created  bj,  or  come  within,  a  statute.  The 
latter  are  construed  wdth  more  strictness,  and  whatever  formal- 
ities are  required  by  the  statute  must  be  punctually  complied 
with.*  In  the  case  of  powers  which  are  in  their  own  nature 
statutable,  equity  must  follow  the  law,  be  the  consideration 
ever  so  meritorious.  Thus  the  power  of  a  tenant-iu-tail  to 
make  leases  under  a  statute,  if  not  executed  in  the  requisite 
form  prescribed  by  the  statute  will  not  be  made  available  in 
equity,  however  meritorious  the  consideration  may  be ;  *  and, 
indeed,  it  may  be  stated  as  generally  true,  that  the  remedial 
power  of  courts  of  equity  does  not  extend  to  the  supply  of 
any  circumstances,  for  the  want  of  which  the  legislature  has 
declared  the  instrument  void,  for  otherwise  equity  would  de- 
feat  the  very  policy  of  legislative  enactments.^ 

Although  a  court  of  equity  will  not  in  general  aid  the  de- 
fective execution  of  a  power  in  favor  of  a  volunteer  except  in 
particular  cases,^  the  defective  execution  of  a  power  will  be 
aided  in  favor  of  a  volunteei",  when  a  strict  compliance  with 
the  power  has  been  impossible,  from  circumstances  beyond  the 
control  of  the  party,  as  when  the  prescribed  witnesses  could 
not  be  found  ;  or  where  an  interested  party  having  possession 
of  the  deed  creating  the  power,  has  kept  it  from  the  sight  of 
the  party  executing  the  power,  so  that  he  could  not  ascertain 
the  formalities  required.* 

So  also  although  a  court  of  equity  will  in  no  case  aid  the 
non-execution  of  a  power,  as  distinguished  from  its  defective 

'  Darlington  v.  Piiltenej',  Cowp.  267;  624,  625;  Thompsons.  Smith,  1  Madd. 

2  Chanc.  Pow.  541-545  ;  Sug.  Pow.  209.  395. 

M  Fonb.  Eq.  Bk.  ],  ch.  l,3.1,T).{t);  » /SMjora,  p.  370. 

Curtis  V.  Perry,  6  Ves.   739,  745,  746,  *  1  Fonb.  Eq.  Bk.  1,  ch.  5,  s.  2,  n.  (k). 
747  ;  Mestaer  v.  Gillespie,  11  Ves.  621, 


*  Bright  V.  Boyd,  1  dtory,  478 ;  McBride  v.  WUkinson,  29  Ala.  663. 


MISTAKE.  445 

execution,^  tlie  case  is  otherwise,  if  tlie  executiou  of  a  power 
has  been  prevented  by  fraud,  as  where  the  deed  creating  the 
power  has  been  fraudnlently  retained  by  the  person  interested 
in  its  non-execution.  In  such  and  similar  cases  equity  will 
grant  relief  on  the  ground  of  fraud.^ 

In  like  manner,  as  equity  will  give  relief  against  mistake 
in  written  instruments,  so  also  it  will  grant  relief  and  supply 
defects  when,  by  mistake,  parties  have  omitted  any  acts  or 
circumstances  necessary  to  give  effect  and  validity  to  written 
instruments.  Thus  equity  will  supply  any  defect  of  circum- 
stances in  conveyances  occasioned  by  mistake :  as  of  a  surren- 
der in  the  case  of  copyholds :  so  also  misprision  and  omission 
in  deeds,  awards,  and  other  solemn  instruments,  whereby  they 
are  defective  at  law.^  It  will  also  interfere  in  cases  of  mistake 
in  judgments,  and  in  matters  of  record  injurious  to  the  right 
of  the  party.* 

The  equity  for  supplying  surrenders  of  cop^yholds,  origi- 
nates in  the  doctrine  that  a  copyhold  does  not  pass  by  grant  or 
devise,  but  by  a  surrender  into  the  hands  of  the  lord  to  the 
use  of  the  grantee  or  the  will.  In  the  one  case  the  grantee  is 
entitled  to  immediate  admission;  in  the  other,  the  person 
designated  in  the  will  is  entitled  to  admission  on  the  testator's 
death.  If  a  grant  or  devise  were  made  without  a  previous 
surrender,  it  was  formerly  inoperative  at  law;  but  if  it  were 
made  for  a  valuable  consideration,  and  in  particular  cases,  if  it 
were  made  for  a  meritorious  consideration,  the  surrender 
might  be  supplied  in  equity.'*  The  supplying  the  surrender  of 
a  copyhold  and  the  sui)plying  the  execution  of  a  power  which 

'  Toilet  V.   Toilet,  2  P.  Wms.  480 ;  the  (ground  of  mistake,  Cannan  v.  Rey- 

Pi"-Colt  V.  Penric3,  Com.  250,  Gilb.  Eq.  nokls,  5  E.  &  B.  301. 

R^n   138.  Mlogers  v.  Marshall,   17  Ves.   294; 

^'Supra,  p.  211,  212.  but  see  as  to  case  of  meritorious  con- 

*  1  Fiinb.  Eq.  Bk.  1,  ch.  1,  s.  Y.  sideration,  Jefferys   v.  JefFerys,   Cr.  <fe 

*  Jeremy  Eq.  Jur.  p.  492,  Story,  Eq.  I'h.  138  ;  Tatliain  v.  Vernon,  29  Beav. 
Jur.  166.  See  as  to  jurisdiction  of  604 ;  White  &  Tud.  L.  C,  voL  I,  p. 
courts  of  law  over  their  own  records  oa  209. 


446  MISTAKE. 

is  defective  in  form,  go  hand  in  hand.  Wherever  there  is  a 
decision  that  the  court  will  supply  the  one,  it  follows  that  it 
will  also  supply  the  other.'^ 

The  jurisdiction  to  supply  a  surrender  existed  whether  the 
gift  were  by  deed  or  will,^  but  it  was  ordinarily  called  into 
exercise  in  the  case  of  wills.  It  has,  however,  been  rendered 
of  little  practical  importance  by  the  enactment  that  all  real 
estate  may  be  devised  by  will,  and  that  copyholds  shall  be 
included  under  that  description,  notwithstanding  that  the 
testator  may  not  have  surrendered  them  to  the  use  of  his  will, 
nor  have  even  been  himself  admitted  to  them.^ 

In  like  manner,  as  equity  will  give  relief  against  mistakes 
in  written  instruments,  will  it  give  effect  to  the  real  intention 
of  the  parties,  as  gathered  from  the  objects  of  the  instrument 
and  the  circumstances  of  the  case,  although  the  instrument 
may  be  drawn  up  in  a  very  inartificial  and  untechnical  man- 
ner. For,  however  just  the  general  rule  may  be,  quoties  in 
verlis  nulla  est  ambiguitas,  ihi  nulla  expositio  contra  verba 
fienda  est,^  yet  that  rule  shall  not  prevail  to  defeat  the  mani- 
fest intent  and  object  of  the  parties  where  it  is  clearly  discern- 
ible on  the  face  of  the  instrument,  and  the  ignorance,  or 
blunder,  or  mistake  of  the  parties  has  prevented  them  from 
expressing  it  in  the  appropriate  language." 

In  regard  to  mistake  in  awards,  the  court  will  not  relieve 
against  an  award  on  the  ground  of  mistake,  either  in  matter  of 
law  or  fact,  if  the  award  is  within  the  submission,  and  contains 
the  honest  decision  of  the  arbitrators  after  a  full  and  lair 
hearing  of  the  parties,  and  the  mistake  does  not  appear  on  the 
face  of  the  award,  or  is  not  disclosed  by  some  contemporaneous 
writing.^*     But  if  the  mistake  appears  on  the  face  of  the 

'  Saver  v.   Sayer,   7   Ha.    387,   per  *  Co.  Litt.  147  a. 

Wioram  V.-C,  Hupra,  p.  368.  "  Jeremy  Eq.  Jur.  p.  367,  368,  Story 

"'Rodgers  V.  MarsliaU,  17  Vea.  294.  Eq.  Jur.  168. 

*  1  Vict.  c.  26,  s.  3.  "  Corneforth  v.   Geer,  2  Vern.  705 ; 


*  1  Bouck  V.  Wilber,  4  Johns.  Ch.  405;  Card  v.  Wallace,  7  Dana,  190; 


MISTAKE.  447 

award,*  or  is  disclosed  by  some  contemporaneous  writing,^  or 
if  the  arbitrator  voluntarily  admit  a  mistake,^  or  state  circum- 

Chirg  V.  Ching,  6  Ves.  282 ;  Tonng  v.  '  Hogge  v.  Burgess,  3  H.  &  K  293. 

Walter,  9  Ves.  365  ;  Goodman  v.  Saycrs,  '  Knox  v.  Symonds,  1  Ves.  Jr.  369 ; 

2  J.  <fe  W.  249  ;  Wood  v.  Griffith,  1  Sw.  Mills  v.   Bowyers'  y.ocic;ty,  3  K.  &  J. 

59;  Steff  V.  Andrews,  2  Madd.  5  ;  Price  68;  but  see  Philipps  v.  Evans,  12  M.  & 

V.  Jones  2  Y.  &  J.  114;  Haigh  v.  Haigh,  W.  309  ;  Hogge  v.  Burgess,  3  H.  &  N 

3D  F.  &  J.  l.-iY.  293, 
•  Morgan  v.  Mather,  2  Ves.  Jr.  15. 


Cleaveland  v.  Dixon,  4  J.  J.  Marsh.  226  ;  Torrance  v.  Lamsden,  3  McLean, 
509 ;  Wiuship  v.  Jewett,  1  Barb.  Ch.  173 ;  Bell  v.  Price,  2  N.  J.  578  ;  Nance 
V.  Thompson,  1  Sneed,  321 ;  Johnson  v.  Noble,  13  N.  H.  286. 

Nothing  is  to  be  considered  apparent  upon  an  award  but  what  forms 
a  part  of  it;  no  calculations  or  any  of  the  grounds  of  it  unless  aimexed  to 
it  or  incorporated  with  it  at  the  time  of  delivery.  Taylor  v.  Nicholson,  1 
Hen.  &  Munf  67 ;  Wheatley  v.  Martin,  6  Leigh.  62. 

If  arbitrators  certify  the  principles  upon  which  they  proceed,  a  mistake 
may  be  corrected.  It  is  incompetent  to  show  by  proof  a  mere  mistake 
of  law  or  of  fact.  Bumpass  v.  Webb.  4  Port.  65  ;  Pleasants  v.  Boss,  1  Wash. 
(Va.),  156  ;  Ryan  v.  Blunt,  1  Dev.  Eq.  382. 

Mistakes,  which  are  grounds  for  exceptions  to  the  report  at  law,  will 
not  constitute  good  grounds  for  interference  in  equity.  Hurst  v.  Ilurst,  2 
Wash.  C.  C.  127;  Head  v.  Muir,  3  Rand.  122;  Wheatley  v.  :\Iartin,  6 
Leigh.  62 ;  Howard  v.  Warfield,  4  H.  «&  McH.  21. 

An  award  may  be  set  aside  in  equity  for  a  palpable  mistake  of  law  or 
fact  upon  a  material  point.  Hartshorn  v.  Cuttrell,  1  Green's  Ch.  297; 
Van  Cortland  ?'.  Undeihill,  17  Johns.  405 ;  2  Johns.  Ch.  339 ;  Hattin  v.  De- 
tinaud,  2  Dessau.  570. 

The  mistake  must  be  of  such  a  character  as  to  show  that  the  deduction 
of  the  arbitrator  was  a  mistaken  inference  from  the  facts,  or  that  the 
facts  themselves  did  not  authorize  the  conclusions  drawn  from  them. 
Cleaveland  v.  Dixon.  4  J.  J.  Marsh.  226 ;  Ewing  v.  Beauchamp,  2  Bibb, 
456. 

It  must  appear  that  the  arbitrators  intended  to  be  governed  strictly  by 
the  law  or  the  fact  mistaken.     Ilolliugsworth  v.  Lupton,  4  Munf.  114. 

An  error  in  judgment  upon  the  merits  is  no  ground  whatever  for  the 
interposition  of  a  court  of  equity.  Hartshorn  v.  Cuttrell,  1  Green.  Ch. 
297;  Boston  Water  Power  Co.  v.  Gray,  6  Met.  131;  Burchell  t'.  Marsh,  17 
How.  344;  Cromwell  v.  Owings,  6  H.  &  J.  10 ;  Van  Cortland  v.  Underbill, 
17  Johns.  405  ;  McVichar  v.  Wolcott,  4  Johns.  509 ;  Rudd  r.  Jones,  4  Dana, 
229;  Ormsby  «.  Bakenell,  7  Ohio,  €8 ;  Head  v.  Muir,  3  Rand.  122;  Rad- 
clifie  r.  Wiphlman,  1  McCord's  Ch  408. 

When  it  appears  that  the  parties  intended  to  submit  a  question  of  law 


448  MISTAKE. 

stances  which  show  clearly  that  the  proceedhigs  have  been 
erroneous,^  equity  "will  relieve  or  remit  the  award  bach  to  the 
arbitrators  under  the  Common  Law  Procedure  Act,^  unless 
the  submission  has  been  made  a  rule  of  court  under  statute  9 
&  10  Will.  3,  c.  15,  in  which  case  application  must  be  made  to 
the  coui't  in  which  it  has  been  made  a  rule. 

In  regard  to  mistakes  in  wills,  a  court  of  equity  has  juris- 
diction to  correct  them  when  they  are  apparent  on  the  face  of 
the  will,  or  may  be  made  out  by  a  due  construction  of  its 
terms.  But  the  mistake  must  be  apparent  on  the  face  of  the 
will,  otherwise  there  can  be  no  relief;  for  at  least  since  the 
Statute  of  Frauds,  which  requires  wills  to  be  in  writing 
(whatever  may  have  been  the  case  before  the  statute),^  parol 
evidence,  or  evidence  deliors^  the  will  is  not  admissible  to 
contradict,  vary,  or  control  the  words  of  the  will,  although 
it  is  in  certain  cases  admissible  to  explain  the  meaning  of 
the  words  which  the  testator  has  used.** 

A  mistake  cannot  be  corrected  or  an  omission  supplied, 
unless  it  is  perfectly  clear  by  fair  inference  from  the  whole 
will  that  there  is  such  a  mistake  or  omission.^     The  first  thing 

^  Mills  V.  Bowyers'  Society,  3  K  <fe  J.  ^  See  Milner  v.  Milner,  1  Ves.  106 ; 

66      See  Bankart  v.  Houghton,  3  D.  F.  Wigram  on  Wills,  p.  5. 

^  j_  ]8.  "MUner  v.   Wilner,  1  Ves.   106;  Ul- 

"  lY  &,  18  Vict.  c.  125,  s.  8;  Mills  v.  rich  v.  Litchfield,  2  Atk.  373  ;  Jarm.  on 

Bowyers'  Society,  3   K.  <fe  J.  66;  Ait-  Wills,  vol.  I,  p.  386:  Wigram  on  Wills, 

ken's  Arbitration,   3  Jur.  N.  S.    1296.  pp.  5,  8. 

See  Ilodgkinson  v.  Fernie,  3  C.  B.  N.  S.  *  Philipps  v.  Chamberlaine,  4  Ves,  5*7. 
189 ;  Hogge  v.  Burgess,  3  H.  <fe  N.  293. 


alone,  the  decision  is  binding,  though  contrary  to  law.  Smith  v.  Smith,  4 
Rand.  95 ;  Crabtree  v.  Green.  8  Geo.  8. 

A  mistake  in  judgment  upon  a  doubtful  question  of  law  is  not  suffi- 
cient. Campbell  v.  Western,  3  Paige,  124;  Morris  v.  Eoss,  3  Hen.  &  Munf. 
408  ;  Cleary  v.  Cour,  1  Hey.  125. 

*  Trexter  v.  Miller,  6  IreU.  Eq.  248;  Goode«.  Goode,  22  Mo.  518  ;  Hunt 
U.White,  24  Tex.  643;  Jackson  v.  Payne,  2  Met.  (Ky.)  567. 

An  omission  of  the  requis'.ts  number  of  subscribing  witnesses  cannot 
be  corrected.     Nutt  v.  Nutt,  1  Freeman's  Ch.  128. 


MISTAKE.  449 

to  be  proved  in  all  cases  is  that  tliere  is  a  mistake.^  The  mis- 
take Jnust  be  a  clear  mistake  or  a  clear  omission,  demonstrable 
from  the  structure  and  scope  of  the  will.^  Thus,  if  in  a  will 
there  is  a  mistake  in  the  computation  of  a  legacy,  it  will  be 
rectified  in  equity.'  So,  if  there  is  a  mistake  in  the  name, 
description,  or  number  of  the  legatees  intended  to  take,^  or  in 
the  property  intended  to  be  bequeathed,^  and  the  mistake  is 
clearly  demonstrable  from  the  structure  and  scope  of  the  will, 
equity  will  correct  it. 

Relief  cannot,  however,  be  had,  unless  the  mistake  be 
clearly  made  out.^  And  so,  if  the  words  of  the  bequest  are 
plain,  evidence  of  a  different  intention  is  iuadmissible  to  estab- 
lish a  mistake ; '  nor  will  a  mistake  be  rectified,  if  it  does  not 
appear  clearly  what  the  testator  would  have  done  in  the  case, 
if  there  had  been  no  mistake.*  But  if  the  omission  of  some 
word  or  phrase  is  so  palpable  on  the  face  of  the  will,  that  no 
difficulty  occurs  in  pronouncing  the  testator  to  have  used  an 
expression  which  does  not  accurately  convey  his  meaning,  and 
it  is  not  only  apparent  that  he  has  used  the  wrong  word  or 
phrase,  but  it  is  also  apparent  what  is  the  right  one,  the  court 
will   substitute  the  right   one.^"'^     Although   the  particulars 

'  Hellish  V.  Mellish,  ih.  49.  v.  Fell,  2  P.  Wms.   141 ;   Hampsliire  v. 

'  lb.;  Fhilipps  v.  Chatnberlaine,  ib.  Peirce,  2  Ves.  216;  Bradwin «;.  Harpur, 

51,  51;  D  1  Mare  v.  Robello,  3  Bm  G.  Ambl.  3Y4 ;  Jarm.  on  Wills,  vol.  1,  p 

C.  445  ;  Purse  v.  Snaplin,  1  Atk.  415;  393  ;  ib.  vol.  2,  pp.  178,  181. 
Holmes  y.  Custance,  12  Ves.  279.  'Door   v.   Geary,    1  Ves.   255;  Sel- 

^  Milner  v.  Milner,  1  Ves.  106  ;  Dan-  wood  v.  Mildmay,  3  Ves.  306. 
vers  V.  Manning,  2  Bro.  V>.  C.  18;  Door  "  Holmes  v.  Lustance,  12  Ves.  279. 

V.   Geary,    1  Ves.   255,  256;   Giles  v.  '  Chambers  w.  Minchin,  4  Ves.  676. 

Giles,  1  Keen,  692.  "  See  Smith  v.  Maitland,  1  Ves.  Jr. 

*  Stebbiiig  V.  W^alkey,  2  Bro.  C.  C  363. 
85;   River's  Case,  1  Atk.  410;  Parsons  "  Taylor  v.  Richardson,  2  Drew.  16. 

V.  Parsons,  1   Ves.  Jr.  260 ;  Beaumont 


*  Wood  V.  White,  33  Me.  340. 

The  name  of  one  legatee  cannot  be  stricken  out  and  that  of  anottier 
inserted.     Gates  v.  Cole,  1  Jones'  Eq.  110. 

The  word  "  dollars  "  may  be  inserted  after  fifteen  hundred.  Snyder  v, 
Warbasse,  3  Stockt.  463. 


450  MISTAKE. 

wliicli  the  testator  has  included  in  his  description  of  the  prop- 
erty, the  subject  of  the  gift,  should  be  inaccurate,  the  gift  will 
be  upheld  if  there  be  enough  of  correspondence  to  aflbrd  the 
means  of  identification.^  If  the  property  the  subject  of  the 
gift  be  capable  of  being  accurately  identified,  certain  errors  in 
the  de-scription  will  not  vitiate  the  gift.^ 

The  same  considerations  apply,  when  the  particulars  which 
the  testator  has  included  in  his  description  of  the  object  of  the 
gift  are  inaccurate.  If  the  devisee  or  legatee  is  so  designated 
as  to  be  distinguished  from  every  other  person,  the  inaptitude 
of  some  of  the  particulars  introduced  in  the  description  is  im- 
material.^ If  there  is  a  person  to  answer  the  name  given  in 
the  will,  it  is  immaterial  that  any  further  description  does  not 
precisely  apply.*  A  gift  by  will  to  a  person  described  as  the 
husband,  or  wife,  or  widow  of  another,  is  not  in  general  affected 
by  the  fact  of  the  devisee  or  legatee  not  actually  answering  the 
description,  by  reason  of  the  invalidity  of  the  supposed  mar- 
riage, or  by  reason  of  the  second  marriage  of  the  supposed 
widow  or  otherwise.^  And  on  the  same  principle  a  legacy  to 
a  person  described  as  the  testator's  intended  wife,  has  been  held 
to  be  payable  although  the  testator  did  not  eventually  marry 
her.®  A  different  rule,  however,  prevails  where  a  fraud  has 
been  practiced  on  a  testator,  the  knowledge  or  discovery  of 
which,  there  is  reason  to  believe,  would  have  destroyed  or  re- 
moved the  motive  for  the  gift.  When,  for  example,  a  testatrix 
under  a  power  of  appointment  bequeathed  a  legacy  to  a  man 
whom  she  described  and  with  whom  she  lived  as  her  husband, 
but  the  marriage  was  invalid  on  account  of  his  having  a  wife 
at  the  time,  which  fact  was  not  known  to  the  testatrix,  the  be- 

'  Jarm.  on  Wills,  vol.  1,  p.  394.  Del  Mare  v.  Robello,  3  Bro.  C.  C.  446; 

-  Door  V.  Gi-ary,  1  Ves.  255;  Selwood  Holmes  v.  Custance,  12  Ves.  2/9. 

V.  Mildnmy,  3  Ves.  306  ;  Jarm.  on  Wills,  ^  Giles  v.   Giles,   1  Keen,    685.    692, 

vol.  1,  p.  394.  693;  Rishton  v.  Cobb,  5  M.  &  C.  14f ; 

'  Jarm.  on  Wills,  vol.  1,  p.  399.  Jie  Petts,  27  Beav.  576. 

*  iStanden  v.  Standen,  2  Yes.  Jr.  589;  "  Schloss  v.  Stiebel,  6  Sim.  1. 


MISTAKE.  451 

quest  was  held  void.^  The  question  in  all  such  cases  is, 
whether  the  mistake  of  the  testator  has  been  induced  by  the 
fraud  of  tlie  object  of  his  intended  bounty.  Though  it  is  clear 
that  a  legacy  given  to  a  person  in  a  character  which  the  legatee 
does  not  fill,  and  by  the  fraudulent  assumption  of  which  char- 
acter the  testator  has  been  deceived,  will  not  take  effect ;  yet  if 
the  testator  is  not  deceived,  although  a  false  character  is  in  fact 
assumed,  the  legacy  will  be  good.  A  fortiori  it  will  be  good, 
if  both  parties  not  only  knew  the  actual  facts,  but  are  design- 
edly parties  to  the  assumption  of  the  false  character.^  A  false 
reason,  however,  given  for  a  legacy,  is  not  alone  a  sufficient 
ground  to  avoid  the  act  or  bequest  in  equity.  To  have  such 
an  effect,  it  must  be  clear  that  no  other  motive  mingled  in  the 
legacy,  and  that  it  constituted  the  substantial  ground  for  the 
act  or  bequest.^ 

If  the  language  of  a  will  is  either  capable  of  more  tlian  one 
meaning,  or  is  incapable  of  any  certain  meaning,  parol  evidence 
cannot  be  admitted  to  show  what  the  testator  intended  to  have 
expressed.*  But  parol  evidence  is  admissible  for  the  purpose 
of  explaining  the  meaning  of  the  terras  he  has  used.^  The 
court  in  construing  a  will  cannot  shut  its  eyes  to  the  state  of 
facts  under  which  the  will  was  made.®  Although  in  general 
evidence  as  to  the  amount  or  state  of  the  testator's  property,  is 
inadmissible  to  influence  the  construction  of  the  will ; '  yet,  if 
he  inaccurately  or  imperfectly  describes  the  gift,  so  as  to  make 
the  interpretation  of  the  words  in  their  primary  sense  impos- 

'  Kcnnell  v.  Abbott,  4  Ves.  804.  of  itself  sufficient   to  destroy  it.     But 

"  Giles  V.  Giles,    1  Keen,   685,  692,  there  must  be  an  exception  of  any  fraud 

693^  practiced    from  wliich    it  may  be  pre- 

**Kennell  v.  Abbott,  4  Ves.  802.  The  sumed  tliat  the  person  giving  ihe  legacy 

civil  law  seems  to  have  proceeded  upon  would  not,  if  that  fraud  had  been  knowa 

the   same   ground.     The   Digest   says,  to  him,  have  given  it.     Keuuell  v.  Ab- 

Falsain  cnutsmn  Ifigato  non  obease  vcrius  bott,  4  Ves.  803. 

est ;  quia  ratio  le/andi.  legato  non  cohcc-  *  Wigram  on  Wills,  95. 

ret.     ,Scd  pleruiiique  doli  ezceptio  /ocwn  '  7A.  8.     See   Grey  «.  Pearson,  6  tt 

habcb'U,  ni probe/ur,  alias  lei/aturuiii  non  L.  106. 

fuisse.    Dig.  Lib.  35,  tit.  1 '  le^.  72,  g  G.  *  Jarm.  on  Wills,  vol.  1,  pp.  393,  394. 

The  meaning  of  this  passage  is  that  a  '  lb.  394,  and  cases  cited. 

false  reason  given  for  the  legacy  is  not 


452  MISTAKE. 

sible,  parol  evidence  is  admissible.^  The  principle  is  exempli- 
fied in  those  cases  in  which  a  devise  of  land  at  a  given  place 
has  been  extended  to  property  not  strictly  answering  to  the 
locality,  because  there  is  none  which  does  precisely  correspond 
to  it ;  ^  or  in  which  an  apparently  specific  bequest  of  stock  in 
the  public  funds  has  been  held  to  authorize  payment  of  the 
legacy  out  of  the  general  personal  estate,  the  testator  having 
no  such  stock  when  he  made  the  bequest.^  So  also  if  the  sub- 
ject of  devise  is  described  by  reference  to  some  extrinsic  fact, 
it  is  not  merely  competent  but  necessary  to  admit  extrinsic 
evidence  to  ascertain  the  subject  of  de\ase.* 

The  same  considerations  apply  when  the  description  or 
terms  employed  by  the  testator  are  insufficient  to  determine 
the  person  intended  by  the  testator.  If  the  object  of  the 
testator's  bounty,  or  the  person  meant  by  him,  is  described  in 
terms  which  are  applicable  indifferently  to  more  than  one 
person,  parol  evidence  is  admissible  to  prove  which  of  the 
persons  so  described  was  intended  by  the  testator.^  ■ 

If  the  words  of  a  will,  aided  by  evidence  of  the  material 
facts  of  the  case,  are  insufficient  to  determine  the  meaning  of 
the  testator,  evidence  to  prove  the  sense  in  which  he  intended 
to  use  them  is,  as  a  general  proposition,  inadmissible.^  Thus, 
evidence  is  inadmissible  for  the  purpose  of  filling  up  a  total 
blank  in  a  will,'  or  inserting  a  devise  inadvertently  omitted  by 
the  mistake  of  the  person  drawing,  making,  or  copying  the 
will,^  or    of  proving  what  was   meant  by   an   unintelligible 


'  Fonnereaiix  v.  Poyntz,  1  Bro.  C.  C.  '  Wigram  ou  Wills,  109  ;  Jarmaii  on 

4T2;  Att.-Gen.  v.  Grote,  3  Mer.  316;  Wills,  toI.  I,  pp.  400-403,   and  cases 

Colpoysw.  Colpoys,  Jac.  451;  Wigram  cited, 

on  Will"  65.  °  Wicrram  on  Wills,  pp.  94,  98. 

''Doe  v.  Koberts,  1  B.  <fe  Aid.  407;  '  Baylis   v.    Att.-Gen.,  2  Atk.   239; 

Jarm   on  Wills,  vol.  I,  p.  393.  Castledon  v.  Turner,  3  Atk.  257;  Hunt 

=  Sel\vood  V.   M'ldmay,  3  Ves.  306;  v.  Ilort,  3  Bro.  C.  C.  311;  Taylor  v. 

Jarm.  on  Wills,  vol.  I,  p.  394.  Richardson,  2  Drew,  16. 

*  Sanford  v.  Raikes,  1  iler.  646,  pc-  '  Kewhurgh  v.   NewburiiTi,   5  Madd. 

Sir  "w.  Grant;  Webb  v.  Byng,  1  K.  &  364;  Jarm.'on  Wills,  vol.  I,  p.  382.    It 

J.  580;  Jarin.  on  Wills,  voL  I,  p.  397.  would,  however,  seem  that  il  a  clause 


MISTAKE.  •  403 

word;^  or  of  proving  that  a  thing  in 'substance  different  from 
that  described  in  the  will  was  intended;'^  of  changing  the 
person  described ;  ^  or  of  reconciling  conflicting  clauses  in  a 
will.* 

Where  a  testator,  by  a  codicil,  revokes  a  devise  or  beqnest 
in  his  will,  or  in  a  previous  codicil,  expressly  grounding  such 
revocation  on  the  assumption  of  a  fact  which  tarns  out  to  be 
false,  the  revocation  does  not  take  effect,  being,  it  is  considered, 
conditional  and  dependent  on  a  contingency  which  fails.^  So 
also  if  a  will  is  cancelled  by  mistake,  or  on  the  presumption 
that  a  later  will  is  good,  which  proves  void,  the  heir  is  not  let 
in,  but  the  .mistake  may  be  relieved  against.^  In  such  case 
equity  does  not  alter  the  will ;  it  merely  relieves  the  party  from 
tlie  effect  of  the  mistake,  thus  placing  him  in  the  same  condition 
as  if  the  mistake  had  not  happened.^ 

An  election  made  by  a  party  under  a  mistake  of  facts,  or  a 
misconception  as  to  his  rights,  is  not  binding  in  equity.  In 
order  to  constitute  a  valid  election,  the  act  done  must  be  with 
a  full  knowledge  of  the  circumstances  of  the  case,  and  the 
right  to  which  the  person  put  to  his  election  was  entitled.^  In 
order  to  presume  an  election  from  the  acts  of  any  person,  that 
person  must  be  shown  to  have  had  a  full  knowledge  of  aU  the 
requisite  circumstances,  as  to  the  amount  of  the  different  prop- 
erties, his  own  rights  in  respect  of  them,  &c.^  A  person  who 
has  elected  under  a  misconception,  Is  entitled  to  make  a  fresh 
election.^" 

be  inadvertently  introduced,  there  may  *  Onions  v.  Tyrer,  1  P.  "Wms.  345. 

•  be  an  issue  to  try  whether  it  is  part  of  '  Ih. 

the  testator's  will.     lb.  ;   Wigram  on  "  Wintour  v.  Clifton,   21  Beav.  468 ; 

Wills,  121.  affirmed  3  Jur.  N.  S.  74. 

'  Goblett  V.  Beochey,  3  Sim.  24.  "  Wake  v.  Wake,  1  Ves.  Jr.  335,  and 

"  Selwood  V.  Mildniay,  3  Ves.  306.  the  other  cases  mentioned;   1  Sw.  381, 

'  Del  Mare   v.  Robello,    1  Ves.    Jr.  n. ;  Reynard  v.  Spence,  4   Beav.   103 ; 

412.  Edwards  v.  Morgan,    13   Pri.    782;  1 

*  Ulrich  u  Litchfield,  2  Atk.  372,  pe»-  Bligh's  N.   S.  401;  Price  v.  Brice,   2 

Lord  llardwicke.  Moll.  21. 

'Campbell  v.   French,   3  Ves.   321;  '»  Kidney  v.  Coussmaker,  12  Ve3.136; 

Doe  >\  Evans,   10  A.  ik  E.   228;  Jarm  Jarman  on  Wills,  vol.  I,  p.  441. 

on  Wills,  vol.1,  p.  170. 


454  ]«ISTAKE. 

The  court  ■will  not  inquire  into  the  fact  of  whether  a 
testator  was  mistaken  or  not  with  reference  to  his  daughter's 
liealth  and  capacity,  assigned  by  his  will  as  a  condition  for 
imposing  a  condition  in  restraint  of  marriage.'^ 

The  costs  of  the  suit,  in  cases  of  mistake,  depend  on  the 
conduct  of  the  parties.-  *  If  a  deed  is  set  aside  or  varied  on 
the  ground  of  mistake,  the  decree  will  be  with  costs  against 
the  defendant,  if  the  suit  is  either  wholly  or  mainly  due  to  his 
conduct  in  the  matter.^  So  also  a  decree  for  specific  perform- 
ance of  an  ordinary  agreement,*  or  of  an  agreement  by  way  of 
compromise,^  will  be  with  costs,  if  the  case  set  up  by  the 
defendant  fails  wholly  on  the  merits,  or  the  litigation  has  been 
due  to  his  conduct  in  the  matter.^  If,  on  the  other  hand,  the 
mistake  is  entirely  owing  to  the  conduct  of  the  plaintiff,  he 
must  pay  all  the  costs  of  the  suit.'''  So  also  if  the  case  set 
up  by  the  plaintiff  wholly  fails  on  the  merits,  and  the  defend- 
ant has  not  been  to  blame  in  the  matter,  the  bill  will  be  dis- 
missed with  costs,  whether  the  object  of  the  suit  be  to  rectify 
an  instrument  or  to  rescind  a  transaction.^ 

So  also  if  a  bill  for  the  specific  performance  of  an  agreement 


*  Morley  v.  Rennoldson,  2  Ha.  584.  '  Attwood  v.  ,  1  Ru=3.  353  ;   5 

*  Mortimer  v.  Shortall,  2  Dr.  &  War.  Euss.  150;   Houghton  v.  Lees,  1  Jur.  N. 
373 ;  Alvanley  v.  Kiimaird,   2  Mac.  &  S.  862. 

G.  9 ;  Harris  v.  PeppereU,  L.  R.  5  Eq.  '  I'arker  v.  Tastvell,  2  D.  <fe.  J.  576. 

1 ;  supra,  p.  324.  '  Harris  v.  PeppereU,  L.  R.  5  Eq.  1, 

'  Bincjjliain  v.  Bingham,  1  Ves.  126;  ^e?- Lord  Romilly. 
East  India  Co.  v.  Donald,  9  Ves.   275  ;  *  Naylor  v.  Winch,  1  Sim.  &  St.  555; 

Dacre  v.   Gorges,  2  Sim.   &  St.  456 ;  Alexander  v.  Crosbie,  LI.  &  G.   temp, 

Sturge  V.  Sturge,  12  Eeav.  245;  Mead-  Sug.  153;  Okill  v.  Whittaker,  1  Deg. 

ows  V.  Meadows,  16  Boar.  404  ;  Coward  <fe  Sm.  83  ;  2  Ph.  338  ;  Wcstby  v.  West- 

V.  Hughes.  1  K.  <fc  J.  451;  Cox  r.  Bru-  by,  2  Dr.   &   War.   502;    Howkins  v. 

ton.  5  W.  R.  544  ;  Leuty  v.  Hillas,  2  D.  Jackson,  2  Mac.  &  G.  S72;  Meadows  v. 

<t  J.  122;  Broughton   v.  Ilutt,  3  D.  <fe  Meadows,   16  Beav.  405;  Rido-way  v. 

J.    501 ;  Brouu  v.   Kennedy,  33  Beav.  Sneyd,  Kay,  637 ;  Bentley  v.  ilackay, 

154;  Harris  v.  PeppereU,  L.  R.  5  Eq.  1.  31  Beav.  159  ;  Bateman  v.  Boyuton,  1,. 

*  Parker  v.  Taswell,  2  D.  <fc  J.  676.  R.  1  Ch.  App.  308. 


*  A  bill  to  rectify  an  instrument  must  aver  tliat  it  differs  from  the 
intention  of  the  parties,  and  set  forth  the  particulars.  United  States  v. 
^[tuii'oej  5  Mason,  573. 


MISTAKE.  455 

be  dismissed,  tlie  dismissal  will  be  "svith  costs,  if  the  case  of 
mistake  as  set  up  by  the  plaintiff  fails  on  the  merits.^  If  there 
have  been  faults  on  both  sides,  costs  will  be  given  to  neither, 
whether  the  object  of  the  suit  be  to  rectify  or  rescind  a  trans- 
action.^ 

Although  a  bill  for  the  rescission  of  a  transaction,  on  the 
ground  of  mistake,  be  dismissed,  the  dismissal  will  be  without 
costs,  if  the  case  of  the  plaintiff  be  a  reasonable  one  on  the 
merits ;  but  his  title  to  relief  has  failed  through  the  absence 
of  due  diligence  on  his  part  in  filing  the  bill ; '  or  because  the 
court  could  not  interfere  without  prejudicing  the  rights  of 
innocent  parties.*  So  also  although  a  bill  for  the  rectification 
of  an  instrument  be  dismissed,  the  dismissal  will  be  without 
costs,  if  the  case  as  set  up  bj  the  plaintiff  be,  on  the  whole,  a 
reasonable  one.'  So  also  although  a  deed  be  cancelled,  the 
circumstances  of  the  case  may  be  such  that  it  will  be  without 
costs.^  So  also  although  a  bill  for  the  specific  performance  of 
an  agreement  be  dismissed,  the  dismissal  will  be  without  costs, 
if  the  defendant  has  been  to  blame  in  the  matter,  either  by 
mistaking  the  terms  of  the  agreement,  or  by  other  acts  of 
negligence;  and  the  refusal  of  the  court  to  interfere  has 
proceeded  merely  on  considerations  as  to  the  hardship  to 
which  the  defendant  would  be  exposed  by  being  compelled  to 
perform  his  agreement  specifically.'  So  also  where  there  has 
been   a  mutual    misunderstanding,^   or  where   the   terms   of 

'  Humphries  v.  Home,   3  Ha.    276 ;  *  Cockerell  v.  Cholmeley,  Taml.  445  ; 

Moxey  V.  Bigwood,  8  Jur.  N.  S.  803.  1  R.  &  M.  425;  Ashhurst  v.  Mill,  7  Ha 

'  Hitchcock  V.  Giddings,  4  Pri.  135  ;  515,  616;  Barrow  v.  Barrow,   18  Beav 

Mortimer  v.  Sliortall,  2  Dr.  &  War.  373;  537  ;  Lord  Bradford  v.  Lord  Komuey 

Murray  v.  Parker,   19  Beav.   305;  Al-  30  Beav.  441. 

v.iiiley  V.  Kinnaird,  2  Mac.   <fe  G.   9 ;  °  Philippson  v.  Kerry,  32  Beav.  638 

Fowler  v.   Scottish  Equitable  Life  As-  '  Malins  v.  Freeman,    2    Keen,    32, 

surance  Society,  28L.  J.  Ch.  228;  Gar-  Manser  i;.  Buck,   6  Ha.  413;  Wood  v. 

r;ird  V  Frackel,  30  Beav.  459;  Price  v.  Scarth,  2  K.  <fe  J.  33  ;  Webster  w.  Cecil, 

Ley,  11  W.  R.  475;  Harris  v.  Pepperell,  30  Beav.  64. 

L.  11.  5  Eq.  1,  mi/ira,  p.  324.  "  Calverley  v.  Williams,  1   Ves.  Jr. 

"  Stone  V.  Godfrey,  18  Jur.  166  ;  but  210 ;   Stratford  v.  Bosworth.  2  V.  <fe  B. 

Bee  S.  C.  on  appeal, ^■)  D.  M.  &  G.  93.  342.     See  Clowes  v.  Higginson,  1  V.  <Jl 

*  M'Alpine  v.  Swift,  1  Ba.  &  Be.  293.  B.  524. 


456  MISTAKE. 

the  contract  are  ambiguous,  so  that  the  one  party  may  have 
reasonably  put  a  different  construction  on  the  contract  from 
what  was  contemplated  by  the  other,*  a  bill  for  specific 
performance  will  be  dismissed  without  costs.  And  so  where 
parol  evidence  was  admitted  in  opposition  to  specific  perform- 
ance.^ 

If  parol  evidence  to  vary  the  contract  is  introduced  by 
the  defendant,  the  bill  should  be  strictly  dismissed ;  and, 
therefore,  if  the  court  makes  a  decree  at  plaintiff's  desire  for 
specific  performance  of  the  contract  according  to  defendant's 
evidence,  the  plaintiff  must  pay  costs.^  But  inasmuch  as 
parol  evidence  to  vary  the  contract  cannot  be  admitted  on 
the  part  of  the  plaintiff  to  a  bill  for  specific  performance,*  a 
bill  for  the  specific  performance  of  a  contract  with  parol 
variation,  though  left  out  by  fraud,  was  dismissed,  but  without 
costs.® 


'  Neap  V.  Abbott,  1  C.  P.  Coop.  temp.  *  Supra,  p.  348. 

Cott.  382;  Baxendaiew.  Seale,  19Beav.  ^  WooUam   v.   Hearn,    7  Ves.    211; 

613.  Lord  Portman  v.  Morris,  2  Bro.  C.  C, 

*  Townshend  v.  Stangroom,   6  Ves.  219;  see  Clowes  v.  Higginson,  1  V.  <fe 

328  ;  Garrard  v.  Grinling,  2  Sw.  250.  B.  524. 

'  Fife  V.  Clayton,  13  Ves.  546;  Mor- 
timer V.  Orchard,  2  Ves.  Jr.  243. 


GENERAL   INDEX. 


GENERAL   INDEX. 


A 

ABATEMENT, 

of  price  for  misdescription,  65,  67,  339,  340. 

purchaser  compelled  to  accept,  361, 362, 363. 

ACCOUNT, 

on  setting  aside  a  sale  as  fraudulent  against  vendor,  344,  345, 

346,  347,  348, 349,  350. 
what  interest  allowed  on  taking,  351. 
on  setting  aside  a  sale  of  shares  as  fraudulent  against  purchaser, 

349,  351. 
no  reconveyance  until,  be  taken,  351. 
of  wilful  default,  in  what  cases  ordered,  348. 
ordered  from  time  of  filing  bill,  if  there  has  been  delay,  348. 

ACQUIESCENCE, 

principle  of,  127,  298, 301. 

founded  on  fraud,  127, 109, 130. 
•what  is  necessary  to  constitute,  85, 131, 298, 300, 301,  302. 
extent  of  the  principle,  127,  129, 131, 133. 
cases  in  which  the  principle  does  not  apply,  131, 133,  300,  301. 
cases  in  which  the  principle  applies  with  peculiar  force,  302. 
in  expenditure  on'his  land  binds  the  landowner,  126, 127, 129. 
mere  silence  not  sufficient,  128. 
refusal  to  speak,  with  reason  given,  is  not,  128. 
none,  where  both  parties  have  equal  opportunities,  128, 131. 
inferred,  from  small  payment,  131. 
through  mistake  of  law,  132, 
joint  tenants,  134. 
by  recovering  judgment,  299. 
party  bound  only  to  extent  of,  300, 


4G0  rsDEX. 

ACQUIESCENCE— COM /m»e(/. 

applies  as  between  trustee  and  cestui  que  trusi,ZOZ. 
representatives  of  man  bound  by  his,  303. 
remainderman  may  be  bound  by,  303. 

ACTION  AT  LAW, 

against  vendor  for  concealment  and  misrepresentation,  53,  325, 

326. 
against  stranger  misrepresenting  property,  53,  54, 340. 
against  agent  misrepresenting  property  of  principal,  326. 
both  fraud  and  injury  must  concur,  325. 
fraud  no  bar  to,  unless  there  is  an  offer  to  rescind,  327 
recoupment  in,  for  fraud,  327. 

no  offer  to  return  when  consideration  is  worthless,  327. 
note  of  third  person  must  be  returned,  327. 
no  return  of  vendee's  own  note,  328. 
time  of  credit  may  be  disregarded,  328. 
fraud  no  defense  to,  on  specialty,  328. 
for  fraud  in  sales  of  land,  328,  329. 

AGENT.     See  Principal  and  Agent. 

principal  bound  by  misrepresentation  of.  111,  112, 113,114,115. 

unless  he  be  acting  ultra  vires,  115,  116,  117. 
notice  to,  notice  to  principal,  258,  259,  260. 
for  purchase,  may  not  sell  his  own  estate  to  principal,  175 
for  sale  or  management  cannot  purchase,  174, 175. 
action   at  law   against,   for  misrepresenting  property   of  prin. 
cipal,  326. 

AGREEMENT.     See  Contract. 

misrepresentation  a  bar  to  specific  performance  of,  358,  359. 
although  made  innocently,  359. 

unless  compensation  can  be  made,  361,  362,  363. 
mistake  a  bar  to  specific  performance  of,  410,  411,  412. 

unless  with  a  variation,  417,  418. 
mistake  in  written,  when  rectified,  418,  421. 
when  not  rectified,  428. 
when  relieved  against,  429,  430. 
parol  evidence  admissible  to  explain  errors  in,  417,  418. 
not  to  bid  at  auction,  valid,  224. 

fraudulent,  respecting  marriage,  215,  216,  217,  218,219,220. 
to  secure  influence  over  other  persons,  220,  221,  222. 
among  heirs  to  share  ec[ually,  224. 


IXDEX.  4G1 

AGREEMENT— cow/t;iMec/. 

addition  by  parol  to  written,  not  admissible  at  law,  416. 
or  on  behalf  of  plaintiff  in  equity,  417. 
when  admissible  as  a  defense  in  equity,  364,  417,  418. 

ALLOWANCE.     See  Account. 

AMBIGUITY, 

of  agreement,  411,412. 

patent,  435,  latent,  435. 

in  what  cases  evidence  admissible  to  explain,  435. 
a  ground  of  defense  in  equity,  360,  411,  412. 
for  refusal  of  costs,  456. 
in  wills,  452. 

parol  evidence  when  admissible  to  explain,  452. 

AMBIGUOUS  RECITAL, 
not  notice,  254. 

APPOINTMENT.     See  Powkr. 

fraud   upon   power   of,   when   relieved   against,  207,  268,  269, 

270,  271,  272. 
when  vitiated  in  toto  by  fraud,  and  when  in  part,  272. 
defective   execution   of  power   of,   when   relieved   against,  335, 

336,  337,  338,  339,  340,  341. 
relief  in  case  of  illusory,  273. 

ARBITRATOR.     See  Award. 

may  not  purchase  claims  of  parties  for  reference,  162. 
corruption  or  partiality  of,  290. 

ARRANGEMENT.     See  Family  Arrangement. 

ASSIGNEE  OF  BANKRUPT, 

may  not  purchase  bankrupt's  estate,  161. 
except  leave  be  obtained,  101. 

ASSIGNMENT, 

of  equitable   interest   in   personal   estate,   notice   of,  to  trustee 

necessary  to  complete  title,  142. 
fraud  in,  277,  278. 
to  a  beggar  not  fraudulent,  277. 
by  debtors    giving   preference  to  creditors,  when  valid  or  not, 

210,211,212,284,285,286. 
for  benefit  of  creditors,  when  valid  or  not,  212,  287. 


462  lifDEX. 

ATTESTING  WITNESS, 

whether  affected  with  notice  of  contents  of  deed,  252. 

ATTORNEY.     See  Solicitor  and  Client. 

AUCTION, 

engagement  by   parties   not   to   bid   against  each  other  at  an, 

valid,  224. 
employment  of  puffers  or  underbidclers  at,  225,  226,  227. 
purchase  at,  by  fiduciary  vendor,  voidable,  158. 

AWARD.     See  Arbitrator. 

jurisdiction  over,  288,  289,  290. 

fraud  in,  43,  44,  288,  289,  290,  291. 

excessive,  291. 

misbehavior  of  arbitrators,  290. 

mistake  in,  when  relievable,  446,  447,  448. 

circumstances  excluding  equity  for  relief  against,  292. 

only  when  apparent  on  the,  447. 

mistake  in  law,  447. 

for  error  in  judgment,  447. 

■when  question  of  law  is  submitted,  447. 

doubtful  question  of  law,  448. 

J3 

BANKRUPT, 

estate  of,  may  not  be  bought  by  assignee,  161. 
nor  by  commissioner,  161. 

BANKRUPT  LAWS, 

fraud  upon  the,  219,  220. 

what  constitutes,  281,  282,  283,  284,  285,  286, 287. 

what  is  not,  282,  283,  284. 

giving  one  creditor  preference  over  another  is,  284,  285, 

286. 
covenant  or  bond  by  a  man  to  pay  moneys  in  contingency 

of  bankruptcy  is,  in  general,  a,  286,  287. 
settlement  by  a  man  on  himself  until  bankruptcy,  is  a,  286. 
settlement  by  a  third  party  on  a  man  until  bankruptcy,  is 

not  a,  286. 
assignment  of  property  for  benefit  of  creditors,  not  a,  287. 


LNDEX.  463 

BIDDER, 

employment  of,  at  auction  when  allowable,  225,  226,  227. 

employment  of,  at  auction  a  fraud  at  law,  225. 

in  tax  sales,  224. 

fictitious  bids  by  auctioneer,  226. 

BONA  FIDE  PURCHASER.     See  Purchaser  of  Value  without 
Notice. 
protected  in  equity,  312,  313,  314. 

BOND, 

marriage  and  place  brokage,  220,  221,  222. 

to  marry  given  secretly,  223. 

for  giving  consent  to  marriage,  fraudulent,  216. 

fraudulent  upon  an  intended  marriage,  216. 

obtained  by  solicitors  from  their  clients,  167. 

reform  of  mistake  in,  425,  426,  427. 

joint,  when  deemed  joint  and  several,  425,  426. 

BROKAGE  BONDS, 

marriage  and  place,  220,  221,  222.  "~ 

0 

CANCELLATION 

of  deeds  by  fraud  or  mistake,  276. 

CAUTION, 

mere  want  of,  a?  distinguished  from  gross  negligence,  239,  240. 
purchaser  not  bound  to  use  excessive,  239. 

CAVEAT  EMPTOR, 

the  rule  of  the  common  law,  59,  101. 

obtains  in  equity,  62. 
in  case  of  purchase  of  real  estate,  103,  104. 
in  case  of  purchase  of  goods,  104,  105,  106,  107,  108. 
does  not  apply  where  there  is  a  distinct  and  positive  misrepre- 
sentation, 82,  257. 

CESTUI  QUE  TRUST, 

right  of,  to  impeach  purchase  by  trustee,  157,  158,  159, 349, 350. 
may  be  lost  by  acquiescence,  303. 
or  lapse  of  time,  246. 
right  of,  to  impeach  purchase  from  trustee,  157,  158,  349,  350. 
purchase  of  trust  estate,  154. 


464  INDEX. 

CESTUI  QUE  TRUST— continued. 
valid  as  to  third  parties,  154. 
binding  on  trustee,  155. 
option  with,  exclusively,  155. 
by  corporation  in  which  trustee  is  member,  155. 
when  remedy  may  be  at  law,  155. 
trustee  cannot  purchase  for  himself,  157. 
purchase  by,  157. 

CESTUI  QUE  VIE, 

death  of,  before  date  of  contract,  429,  430. 

CHANGE 

of  solicitors  not  notice  of  change  of  interest,  254. 

CHAKITY, 

governor  of,  lease  to,  of  the  lands,  invalid,  162. 
within  the  rule  as  to  purchasers  without  notice,  313. 
lands,  tenant  of,  also  a  trustee,  163. 

CHARTER 

obtained  by  fraud,  355. 

CHEAT, 

goods,  instruments,  &c.,  obtained  by,  as  distinguished  from  goods, 
instruments,  &c.,  obtained  by  fraud,  49,  50. 

CHILD, 

and  parent,  contracts,  gifts,  &c.,  between,  when  valid,  179,  180, 

181,  262. 
prima  facie,  valid,  179. 
defective  execution  of  power  supplied  in  favor  of,  440. 

CHOSES  IN  ACTION, 

assignee  of,  not  assignable  at  law,  cannot  set  up  defense  of  pur- 
chase for  value  without  notice,  322,  323. 

rule  as  to  notice  of  assignment  of,  does  not  apply  to  equitable 
interests  in  land,  1 42. 

CLAIM, 

concealment  of,  may  amount  to  fraud,  130,  131. 

CLERICAL  ERROR, 

corrected  by  courts  of  law,  416. 

CLIENT  AND  ATTORNEY.     See  Solicitor  and  Client. 


index:.  '*oo 

collusion,  42,  190. 

between  a  company  and  a  creditor  to  enforce  his  debt  against  a 
particular  shareholder,  278. 

COMMENDATION, 

of  property  by  vendor  allowable,  82,  83,  84,  85,  80,  87. 

COMMISSIONERS 

of  bankrupts  may  not  buy  bankrupt's  estate,  101. 

COMMITTEE 

of  lunatic  may  not  purchase  or  rent  the  lunatic's  estate,  101,  102. 

COMPANIES, 

misrepresentation  and  concealment  in  prospectuses  of,  110,  111. 

vague  representations  in  prospectuses  of,  80,  87. 

collusion  between  directors  of,  and  a  creditor  to  enforce  his  debt 

against  a  particular  shareholder,  278. 
parties  induced  by  misrepresentation  to  take  shares  in,  when  not 

relieved  from  the  shares,  340,  341. 
fraud  upon,  by  shareholder,  279. 
notice  to  proper  officers  of,  notice  to,  202. 
notice  to  directors  of,  not  notice  to,  202. 
notice  to  shareholder  of,  not  notice  to,  202. 

COMPENSATION, 

defects,  &c.,  not  admitting  of,  avoid  contract,  if  undisclosed,  59, 

05,  302. 
conditions  respecting,  304. 

what  matters  do  not  admit  of,  02,  03, 04, 05,  302,  303. 
purchaser  compelled  to  take  defective  estate  with,  301, 302. 
vendor's  or  purchaser's  right  to,  for  difference  in  quantity,  07, 303. 
for  improvements  on  an  estate  on  setting  aside  a  transaction,  347 
allowed  in  respect  of  false  representation  through  mistake,  339, 

340. 
price  for  better  title,  345. 
none,  in  case  of  actual  fraud  on  creditors,  345. 
in  case  of  constructive  fraud,  340. 

COMPOSITION  DEEDS,  214. 

secret  arrangements  by  creditors,  a  fraud  upon,  214,  215. 
under  '<  Bankruptcy  Act,  1801,"  287. 
in  what  cases  a  fraud  upon  creditors,  287. 
concealment  of  assets  vitiates,  215. 


46G  INDEX. 

COMPROMISES, 

vitiated  by  concealment,  124,  125. 

of  doubtful  rights,  not  vitiated  by  mistake,  403, 404, 405. 
may  be  vitiated  by  mistake  of  fact,  433,  434. 
consideration  for,  404. 
CONCEA  LMENT.     See  Misrepresentation,  94,  95,  96, 97, 98. 
a  fraud,  if  there  be  a  duty  to  disclose,  95, 130. 
as  distinguished  from  silence,  98, 99, 100. 
must  be  of  a  material  fact,  94,95. 
must  be  in  reference  to  the  transaction,  95. 
immaterial,  if  fact  be  known,  95. 

a  fraud,  if  there  be  artifices  to  mislead,  98,  99, 102, 103, 127. 
of  truth,  after  discovery  of  misrepresentation,  67. 
of  patent  faults,  101. 
of  latent  faults,  101, 102, 103. 
by  vendor  of  ownership  of  property,  88. 
by  purchaser  of  advantages,  &c.,  9G,  97, 98. 
by  purchaser  of  his  insolvency,  107, 108. 
of  recorded  incumbrance,  103. 
when  property  does  not  exist,  104, 
when  property  is  worthless,  104. 
vendee's  knowledge  of  defective  title,  104. 
when  there  is  no  title,  104. 
by  agent,  binding  on  principal,  111,  118. 
in  prospectuses  of  companies,  100. 
in  policies  of  marine  assurance,  118, 119. 
life  assurance,  120,  121. 
fire  assurance,  121. 
in  guarantees  and  contracts  of  suretyship,  122, 123. 
in  compromises,  124. 

by  parties  in  dealings  with  others  toward  whom  they  stand  in 
a  fiduciary  position,  125, 150, 151. 

trustee  and  cestui  que  trust,  157. 

solicitor  and  client,  164, 165. 

principal  and  agent,  172, 173, 174. 

guardian  and  ward,  178. 

parent  and  child,  179,  181. 

partners,  182. 

parties  generally  coming  within  the  principle,  182, 183. 
of  claim  by  incumbrancer,  1.30, 131. 
in  fraud  of  marriage,  216,  21'''. 


IXDEX.  4C7 

CONCEALMENT— cow/»j«ec/. 

of  title  with  design  to  mislead,  126, 127, 128,  129. 
contract  procured  bj,  not  enforced  in  equity,  358. 

CONDITION, 

imposed  under  mistake,  453. 

CONFIRMATION, 

of  impeachable  transaction,  when  binding  in  equity,  296,  297. 

concealment  will  vitiate,  297. 

marriage  brokage  bonds  incapable  of,  221. 

implies  knowledge  of  defect,  297. 

must  be  deliberate  act,  297. 

CONSENT, 

necessary  in  contracts,  142,  143. 
what  is  necessary  to  constitute,  143. 
to  marriage,  fraud  in  withholding,  223. 

CONSIDERATION.     See  iNAOEQUAcy  of  Consideration. 
may  be  either  good  or  valuable,  198. 

what  will  constitute  a  valuable,  200,  201,  202,  203,  232,  233. 
marriage  a  valuable,  201,  232. 
unless  there  be  fraud,  201. 
inadequacy  of  not  per  se  a  ground  for  relief,  186,  187,  188,  189, 

or  for  refusing  specific  performance,  186,  364. 

when  a  ground  for  relief,  164,  187,  189. 
false  statement  of,  191,  192. 

may  vitiate  a  deed,  191, 192. 
not  expressed,  may  be  proved,  191,  192,  199. 

CONSTRUCTIVE  NOTICE.     See  Notice. 
what  is,  236,  237,  240. 
as  distinguished  from  actual  notice,  236, 
limits  of  doctrine  of,  236,  237,  238,  239,  252. 
party  not   fixed  with,  of  instruments  or  facts  which  may  only 

by  possibility  affect  property,  254,  255. 
may  be  excluded  by  positive  representation,  &;c.,  79,  80,  255, 

256,  257, 258. 
only  operates  in  matters  affecting  title,  258. 

CONTRACT.     See  Agreement. 

vitiated  by  absence  of  consent,  143. 
induced  by  fraud  voidable,  not  void,  48. 
of  lunatic,  idiot,  &c.,  143,  144,  145. 


468  INDEX. 

CONTRACT— continued. 

of  person  in  a  state  of  mental  imbecility,  145,  146. 

of  person  in  a  state  of  intoxication,  147. 

of  infant,  147,  148. 

of  married  woman,  148,  149. 

by  a  party  under  duress  or  imprisonment,  184,  185. 

in  a  state  of  embarrassment,  190, 
vitiated  on  the  ground  of  undue  influence,  149,  179,  183,  192, 

193, 194. 
with  persons  in  a  fiduciary  relation,  148, 149. 
marriage  brokage,  not  capable  of  confirmation,  221. 

CONVEYANCE.     See  Fraudulent  Conveyances, 

vendor    defrauded    remains    owner   in   equity    notwithstanding 

subject  to  repayment  of  moneys  received,  48. 
reformed  in  equity,  418,  419,  421. 

COPYHOLD, 

surrender  of,  supplied  in  equity,  438,  446. 
purchaser  need  not  take,  instead  of  freehold,  62,  362. 
nor  need  he  take  freehold  instead  of,  362. 

CORPORATION, 

lease  to  member  of,  of  corporate  property  set  aside,  162, 

COSTS, 

sale  to  solicitor  in  discharge  of,  166, 

solicitor  may  not  take  security  for  future,  167. 

general  rule  in  equity  as  to,  392,  393, 

charges  of  fraud,  if  unsubstantiated,  visited  with,  393, 

unsuccessful  litigant  as  a  general  rule  has  to  pay,  390,  394,  454, 

455. 
in  equity,  do  not  always  follow  the  event,  391, 
unsuccessful  litigant  exempted  from  payment  of,  391,  392,  393, 

455,  456, 
solicitor  made  party  to  a  suit  for  the  purpose  of  having  costs 
paid  by  him,  380,  394,  395, 
costs  must  be  prayed  for  by  the  bill,  395, 
party  abetting  a  fraud  made  party,  and  ordered  to  pay,  380, 

395, 

COUNSEL, 

rule  in  equity  as  to  dealings  between  client  and,  171. 
notice  to,  is  notice  to  client,  258,  260. 


INDEX.  4G9 

COV'^^F.L— continued. 

must  disclose  adverse  retainer.  163. 

cannot  abandon  client,  1G3. 

judgment  is  only  security  for  what  is  actually  due,  164. 

purchaser  from  client  protected,  167. 

when  acting  for  two  clients,  169. 

for  defendant,  may  purchase,  169. 

COURTS  OF  COMMON  LAW, 

have  jurisdiction  over  fraud,  44,  45. 
remedies  in,  often  defective,  45,  46,  332,  333. 

COURTS  OF  COMPETENT  JURISDICTION, 

assistance  of  courts  of  equity  to  prevent  fraud  upon,  295. 

COVENANTS, 

notice  of  lease  is  notice  of,  243,  244. 

in  lease,  deceptive  statements  respecting,  91,  99,  244. 

COVERTURE, 

rights  of  married  women  in  equity  in  respect  of  separate  property 

notwithstanding,  148. 
no  excuse  for  participation  in  fraud,  149. 

CRE^)ITORS.     See  Fraudulent  Conveyances. 

fraud  upon,  196,  197,  198,  199,  200,  201, 202, 203, 204, 205, 206, 

207,  208,  209,  210,  211,  212,  213,  214,  215. 
when  on  sale  of  chattels  vendor  remains  in  possession,  208, 

209,  210. 
assignment  for  benefit  of,  when  valid  or  not,  212,  287. 
fraudulent  devises  in  fraud  of,  214. 

favored  in  equity  in  cases  of  defective  execution  of  powers,  440. 
preference  of  particular,  210,  212,  284,  285,  286. 
assignment  to  fictitious,  a  fraud  on  the  bankrupt  laws,  287. 
trust  deeds  for,  when  fraudulent,  287. 

CROWN, 

fraud  upon  the,  294,  295,  355. 

D 

DECEIT, 

action  on  the  case  for,  325. 

when  and  against  whom  it  will  lie,  325,  326. 

DECEPTIVE  STATEMENT, 
is  a  fraud,  91,  92,  98,  99,  244. 


470  INDEX. 

DECREE, 

fraud  in,  remediable  in  equity,  43,  44,  292,  351,  352,  353. 
purchasers  under,  take  with  notice  of  fraud  apparent  on  face  of) 

317. 
of  court  of  equity  may  be  adjusted  to  meet  the  exigencies  of  a 

particular  case,  46. 

DEEDS, 

fraudulent  suppression  and  destruction  of,  275,  276. 

fraudulently  obtained  without  consideration,  187, 

given  in  extreme  intoxication,  147. 

vendor  need  not  state  defects  apparent  on  face  of,  103. 

cancellation  of,  276. 

omission  to  ask  for,  or  to  retain,  its  effects  as  regards  priority, 

140,  141,  142,  251. 
notice  of,  as  affecting  property,  is  notice  of  entire  contents,  241, 

242. 
notice  that  party  holds,  is  notice  of  his  incumbrance,  234,  251. 
attesting  witness  not  affected  with  notice  of  contents  of,  252. 
fraud  in,  proveable  by  parol  evidence,  389. 

DEFECTS,  . 

patent  and  latent,  what  are,  101.  • 

disclosure  or  concealment  of,  by  vendor,  101,  102,  103. 

in  execution  of  power,  when  supplied  in  equity,  438,  439,  440, 

441,  442,  443,  444. 
in  instruments,  when  supplied  in  equity,  445,  446,  447. 
in  estate,  abatement  of  purchase  moneys  in  respect  of,  65,  66,  67, 
363. 

DEFICIENCY 

in  quantity  of  estate,  compensation  for,  65,  66,  67,  363. 

DELAY.     /S'eeTiME. 

in  instituting  a  suit  to  impeach  a  transaction  a  bar  to  relief,  303, 
304,  305,  306,  307,  308,  309,  310,  311,  312. 
especially  in  certain  cases,  306,  307. 
even  as  between  trustee  and  cestui  que  trust,  308,  309. 
acquiescence,  as  distinguished  from,  305. 
representatives  of  a  man  bound  by  his,  312. 
bill  dismissed  on  ground  of,  dismissed  without  costs,  391,  455. 

DEPRECIATORY 

remarks,  tSsc,  by  purchaser,  their  effect,  87. 


INDEX.  471 

DESTRUCTION 

of  deeds,  fraudulent,  275,  276. 

DIRECTORS 

of  public  companies,  misrepresentation  by,  110,  111. 

DISCLOSURE.     See  Concealment. 

of  facts,  defects,  &c.,  by  vendor,  94,  101, 103,  103. 
of  advantages,  &c.,  by  purchaser,  96. 

DISTRESS, 

rule  of  equity  as  to  transactions  entered  into  by  a  person  in,  184, 
189,  190,  191. 

DOLUS, 

according  to  the  civilians,  73. 

DRUNKARDS, 

acts  and  contracts  of,  relievable,  where  there  is  fraud,  147, 
where  relief  refused  to,  147. 

DURESS, 

relief  in  cases  of,  184, 185,  189,  190,  193,  194. 

E 

ELECTION, 

what  is  necessary  to  constitute  a  valid,  453. 
relief  against,  made  under  mistake,  453. 

ENCOURAGEMENT 

of  party  in  error  may  amount  to  fraud,  98,  127,  128,  129,  130, 
131,  401. 

EQUITABLE  ESTATE.     See  Equitable  Interest. 

in  land,  purchaser  of,  acquires  no  priority  by  notice  to  owner  of 
legal  estate,  142. 

EQUITABLE  INTEREST 

in  personal  estate,  purchaser  of,  acquires  priority  by  givmg  notice 

to  person  in  possession  of  fund,  142. 
as  between  parties  claiming  a  mere,  he  who  is  prior  in  time  has 
a  better  equity,  321,  322. 
defense  of  purchase  for  value  without  notice  has  no  place, 

321,  322,  323. 
the  negligence  of  one  may  give  the  other  a  better  equity,  141. 
the  possession  of  the  deeds  may  give  a  better  equity,  141. 


472  INDEX. 

EQUITABLE  TITLE 

of  purchaser  without  notice  protected  by  the  legal  estate,  312, 

813,  314,  315,  316. 
mere,  postponed  to  prior  equities,  321,  322,  323. 
with  possession  of  deeds  and  the  ownership  of  the  legal  estate, 

priorities  between,  140,  141. 

EQUITIES, 

as  between  innocent  parties  defrauded,  138,  139,  140,  141. 
as  between  mere,  purchase  for  value  without  notice  has  no  place, 
321,  322,  323. 

EQUIVOCAL 

terms  of  agreement  a  ground  for  refusing  costs,  456. 

ERROR.     See  Mistake. 

clerical,  in  agreement,  corrected  by  courts  of  law,  416. 

ESTATE  TAIL, 

barred  by  fraud,  remedy  of  remainderman,  372. 

EVIDENCE.     See  Proof. 

rules  of,  same  in  equity  as  st  law,  384. 
to  prove  fraud,  384,  385. 

parol,  where  admissible  to  prove  consideration  in  a  deed,  191, 
192. 

of  variation  in  or  addition  to  agreement  admissible  in 
defense  to  a  suit   for  specific  performance,  363,  364, 
417. 
admissible  on  application  to  rectify  or  rescind  an  instru- 
ment on  the  .ground  of  mistake,  416,  423. 
when  admissible  to  explain  an  ambiguity  in  an  agreement, 

435. 
when  admissible  to  explain  a  will,  451,  452. 
of  one  witness  cannot  prevail  against  a  denial  by  the  answer, 
389. 
EXECUTION, 

defective  of  power,  when  relieved  against  in  equity,  440,  441, 
442,  443. 

EXECUTOR.     See  Eiduciary  Relation. 

rule  in  equity  as  to,  dealing  in  respect  of  the  testator's  estate, 

161. 
may  file  a  bill  to  have  a  transaction,  fraudulent  as  against  his 

testator,  set  aside,  372. 


INDEX.  473 

EXPECTANCY, 

fraud  in  respect  of  sale  of,  1 87,  n.  224. 

EXPiENDITURE 

in  improvements,  allowed  to  a  purchaser  in  account,  on  rescind- 
ing a  transaction,  345,  346,  347. 

purchaser  when  protected  in  equity  against  person  encouraging, 
127,  128,  129,  130,  131. 

when  a  part-performance  in  equity,  136. 

EXPENSES, 

allowed  to  party  complaining,  on  transaction  being  set  aside  for 
fraud,  350, 

F 

FALSE  REPRESENTATION.     See  Misrepresentation. 

FALSE  STATEMENT, 

of  consideration,  191,  192. 

FAMILY  ARRANGEMENT, 

rule  of  equity  as  to  validity  of,  180,  181,  182,  271. 
valid  in  equity  notwithstanding  mistake  of  parties,  434. 

FATHER 

and  son,  rule  in  equity  as  to  dealings  between,  179,  180,  181, 

FAULTS, 

sale  with  all,  102,  103. 

FELONY, 

goods  obtained  by,  as  distinguished   from  goods  obtained  by 
fraud,  49. 
FEME  COVERT, 

may  dispose  of  separate  property,  148,  149. 
bound  by  fraudulent  representations,  148. 
not  liable  for  fraud,  149. 

representing  herself  to  be  single,  149. 
no  action  against  husband  and  wife  for  fraud,  149. 
acquiescence  in  husband's  conduct,  149. 
defective  execution  of  power  aided  in  favor  of,  370. 
FIDUCIARY  RELATION, 

rule  of  equity  as  to  dealings  between  parties  standing  in  a  posi- 
tion to  each  other  of,  148,  149,  150,  151,  152,  153.  154,  155, 
156,  157,  161,  162,  182,  183. 


474  INDEX. 

FIDUCIARY  RELATION— continued. 

proof  of  fairness  of  transaction  rests  on  party  filling  the  position 

of,  151,386. 
limitation  of  general  rule  as  to  dealings  between  parties  in  a, 

152. 
after  termination  of,  parties  may  deal  with  each  other,  152,  167, 

168,  175. 
rule  of  equity  as  to  dealings  between  parties  in  a,  may  continue 
after  cessation  of,  153. 
applies  to  third  persons  who  make  themselves  parties  to 

such  dealings,  151,  179. 
may  apply,  even  though  no  definite  relation  subsist  between 
the  parties,  183. 
on  what  terms  a  transaction  between  persons  standing  in  a,  is  set 
aside,  349,  350. 

FINE 

obtained  by  fraud,  relieved  against,  353,  354. 

FORFEITURE, 

fraud  on  the  law  of,  280,  281. 
FORGED  INSTRUMENT, 

purchaser  under,  yet  protected  by  getting  in  legal  estate,  314, 
315. 

legal  estate  cannot  pass  under  a,  50,  51,  315. 

FRAUD.     See  Concealmen-t — Misrepresentation. 

what  is,  41,  42. 

moral,  as  distinguished  from  legal,  57. 

concurrent  jurisdiction  of  law  and  equity  over,  44,  45. 

always  cognizable  in  equity,  43,  44. 

except  fi-aud  in  obtaining  a  will,  44. 

not  punishable  in  equity  as  a  crime,  43. 

classification  of  forms  of,  43. 

as  regarded  by  a  court  of  equity,  as  distinguished  from,  as  re- 
garded by  courts  of  law,  45. 

equity  may  entertain  jurisdiction  over  notwithstanding  remedy 
at  law,  46,  47,  48.     " 

transaction  tainted  by,  voidable  only,  not  void,  48,  49. 
not'voidable,  if  right  of  others  intervene,  49. 

goods,  instruments,  &c.,  obtained  through  a  trick  or  cheat,  as 
distinguished  from  goods,  instruments,  &c.,  obtained  through, 
49,  50. 

original  vice  continues  to  taint  a  transaction  founded  upon,  51. 

no  lapse  of  time  will  screen,  51. 


T^DEX.  475 

FRAUD — continued. 

words  more  or  less,  65. 

will  not  cover  fraud,  65. 
import  of,  65. 
qualify  representation,  66. 
must  be  clearly  proved,  383. 
onus  2^rohandi  rests  on  party  alleging,  383. 

will    be   presumed,   where  the  parties  are   on  unequal  footing, 
143,  386. 
unless  party  upholding  the  transaction  can  prove  the  fair- 
ness of  it,  386,  387. 
evidence  of,  384,  385,  388,  389. 
must  be  pleaded,  365,  366,  367. 
bill  will  lie  for  recovery  of  moneys  obtained  by,  46,  47,  48,  367, 

368,  369. 
who   may   sue   to   set   aside   a   transaction   on   the  ground  of, 
370,  371,  372,  373,  374. 
particeps  criminis,  373,  374,  375,  376,  377,  378,  379. 
■who  may  be  made  defendants  to  a  suit  to  set  aside  a  transaction, 

on  ground  of,  379,  380,  381,  382. 
transaction  impeachable  on   the   ground  of,  may  become  unim- 
peachable by  confirmation,  296,  297. 
by  acquiescence,  298,  299,  300,  301,  302. 
by  lapse  of  time   or   delay  in  instituting  a  suit,  303,  304, 
305,  306,  307,  308,  309,  310, 311. 
of  agent,  principal  bound  by,  111,  112,  113. 
of  one  member  of  a  firm  affects  co-partner,  114,  351. 
infancy  or  coverture  no  excuse  for,  147,  148,  149. 
by  vendor,  incumbrancer  encouraging,  &c.,  postponed  in  equity, 

130,  131. 
gross  negligence  may  be  treated  as  equivalent  to,  137,  140,  240. 
mere  suspicion  of,  does  not  affect  a  purchaser,  239,  254,  255. 
of  his  own  professional  adviser,  whether  purchaser  has  implied 

notice  of,  261. 
how  purchaser  guilty   of,   must  account,  if  sale  set  aside,  345, 

346. 

groundless  imputation  of,  its  effect  on  costs,  403. 
a  ground  for  setting  aside  a  sale  by  the  con  it,  353. 
in  cases  of  idiots,  lunatics,  &;e.,  143,  144,  145,  146. 
in  cases  of  drunkards,  147. 

married  women,  148,  149. 


47G  INDEX. 

FRAUD — continued. 

infants,  147. 

undue  influence,  183,  184,  185,  193. 
duress,  184,  185. 

inadequacy  of  consideration,  186,  187. 
suppression  and  destruction  of  deeds,  275,  276. 
the  prevention  of  acts  to   be  done  for  the  benefit  of 
third  persons,  273,  274,  275. 
setting  up  an  instrument  obtained  for  one  purpose  for  an- 
other purpose,  276. 
by  and  upon  companies,  278, 279. 
upon  the  mortmain  laws,  279. 
in  assignments,  by  assignees,  &c.,  277. 
in  the  law  of  forfeiture,  280. 
upon  the  bankrupt  laws,  281,288. 
in  awards,  288, 292. 
upon  particular  statutes,  288. 
in  judgments  and  decrees,  292,  293,  294. 
upon  the  crown,  294. 
upon  the  legislature,  295. 
upon  other  courts,  295. 
upon  powers,  267-273. 
upon  creditors,  196-215. 
upon  marriage  articles,  215,  216. 
upon  the  marital  rights,  217-220. 
in  respect  of  bond  to  marry,  223. 
in  withholding  consent  to  marriage,  223. 
in  respect  of  expectancies,  223,  224. 
in  respect  of  sales  by  auction,  224,  225. 
voluntary  conveyances  in,  of  subsequent  purchasers,  227-233. 
when  persons  purchase  with  notice  of  adverse  title,  233-266. 
in  marriage  and  place  brokage  contracts,  220,  221,  222. 
arising  from  peculiar  fiduciary  relations,  147,  183. 

between  trustee  and  cestui  que  trust,  147-183. 

between  solicitor  and  client,  163-172. 

between  principal  and  agent,  172-177. 

between  guardian  and  ward,  177-179. 

between  parent  and  child,  128, 131, 179-182. 

between  partneis,  182. 

between  principal  and  surety,  182. 

in  other  special  cases,  151,  161,  162,  171,  182. 


INDEX.  477 

FRAUDULENT  CONVEYANCES, 
relief  of  creditors  against,  196,  198. 
what  ^yithin  statute  of  13  Elizabeth,  198. 
when  one  indebted  conveys  to  his  wife  and  children,  200, 201, 

202,  203, 204,  205. 
whether  indebtment  'per  se  evidence  of  fraud,  205,  206. 
when  subsequent  creditors  let  in,  206,  207. 
must  be  of  property  applicable  to  discharge  of  debts,  208. 
when  made  to  defeat  creditors,  void,  though  for  a  valuable  con 

sideration,  198,  208. 
when  vendor  of  chattel  property  remains  in  possession  after  the 

sale,  208,  209,  210. 
assignments  giving  preference,  when  valid,  209,  210,  211,  212. 
voluntary  conveyance  of  real    estate   in   regard  to  subsequent 

purchasers,  227-233. 
to  defeat  an  attachment,  196. 
of  articles  consumable  in  their  use,  196. 
in  name  of  third  person,  197. 
reconveyance  by  grantee,  197. 
void  in  toto,  197. 
judgment  is  lien  on,  197. 
dower  in,  197. 

valid  against  third  parties,  198. 
not  made  valid  by  subsequent  consideration,  200. 
grantee  must  concur  in,  201. 

voluntary,  governed  by  statute  27  Elizabeth,  227. 
such  conveyances  good  as  between  the  parties,  230. 
the  statute  does  not  extend  to  personal  estate,  233. 
between  volunteers  equity  will  not  interfere,  233. 
defeated  by  a  sale,  though  the  purchaser  takes  with  notice,  229. 
rule  in  America,  227. 
does  not  apply  to  State,  228. 
of  equitable  interest,  228. 
valid  against  purchaser  with  notice,  228. 
record  is  notice,  228. 
judicial  sale,  230. 
to  defraud  creditors,  231. 
applies  to  personal  property,  233. 

FRAUDULENT  INTENT, 
what  constitutes,  54,  92. 
in  particular  cases  imputed,  55,  56,  57. 


478  INDEX. 

FRAUDULENT  INTENT— continued. 

not  imputed  if  a  man  makes  a  representation  which  he  honestly 
believes  to  be  true,  60,  61. 

FRAUDULENT  PREFERENCE, 

what  is,  284,  285. 

what  is  necessary  to  constitute,  285,  286. 


G 

GIFT, 

by  client  to  solicitor  is  not  valid,  170. 
by  principal  to  agent,  176. 
by  cliild  to  parent,  180. 

mere  trifling,  may  be  valid,  though  a  large  one  would  be  invalid, 
152. 

GOVERNOR 

of  charity  cannot  buy  or  take  a  lease  of  charity  land,  162. 

GUARANTEE 

avoided  by  non-disclosure  or  concealment  of  material  facts,  122, 
123,  124. 

GUARDIAN  AND  WARD, 

rule  of  equity  as  to  dealings  between,  177. 

not  limited  to  cases  where  the  relation  actually  exists  at  the 
time,  177,  178. 
after  complete  termination  of  relation  of,  parties  may  deal,  178. 
cases  coming  within  the  rule  of  equity  with  respect  to  dealings 

between,  178, 179. 


H 

HEIR 

of  party  defrauded  may  file  a  bill  for  relief,  371. 

of  voluntary  settler  cannot  defeat  the  settlement  by  a  sale,  229. 

agreement  between  expectant  heirs  to  share  equally  is  valid,  224. 

HUSBAND, 

defective  execution  of  a  power  by  wife  in  favor  of,  not  aided  in 
equity,  440. 


INDEX.  479 

I 

IDIOTS.     See  Lunatic. 

IGNORANCE.     See  Mistake. 

willful,  tantamount  to  actual  knowledge,  237. 
of  law,  398. 

moneys  paid  in,  402. 
of  fact,  406. 

ILLEGAL 

purpose  concealed  from  vendor,  does  not  avoid  conveyance,  46. 
party  may  avoid  his  deed  by  showing  that  it  was  ex©- 
cuted  for  an,  388. 

ILLUSORY  APPOINTMENT,  273. 

IMBECILITY, 

mental,  relief  in  cases  of,  143,  144,  145,  146. 

where  there  is  duress  or  undue  influence,  187,  188,  189,  190. 

IMPRISONMENT, 

contract  by  party  under,  184,  185. 

IMPROVEMENTS, 

expenditure  in,  allowed  to  a  purchaser  on  setting  aside  a  transac- 
tion, 345,  346,  347. 
refusal  to  execute  promised,  a  defense  in  equity  to  bill  for  specific 

performance,  304. 
by  lessee  on  land  of  lessee  not  allowed,  131,  132,  133. 
purchaser  who  seeks  to  set  aside  a  transaction  on  ground  of  fraud 

should  pray  for,  347. 
false  representation  as  to  amount  spent  in,  upon  property  may 
amount  to  a  fraud,  88. 

IMPROVIDENCE 

of  transaction  not  a  ground  of  relief,  189,  190. 

INADEQUACY  OF  CONSIDERATION, 
not  in  general  a  ground  for  relief,  186. 

or  for  refusing  specific  performance,  186,  364. 
a  ground  of  relief,  if  grossly  inadequate,  187. 

or  if  the  parties  are  in  a  position  of  fiduciary  relation,  116, 

137,  164,  165,  189. 
or  if  the  one  possesses  an  influence  over  the  other,  189,  190. 


480  INDEX. 

INADEQUACY  OF  CONSIDERATION— con?i;i?/ei. 

till  recently  a  ground  for  setting  aside  the  sale  of  a  reversion, 

187n. 
may  amount  to  proof  of  fraud,  187. 
due  to  fall  of  vendor,  186. 
on  sale  for  taxes,  186. 
sale  under  judicial  process,  188. 
sale  at  auction,  188. 
when  consideration  is  mere  bubble,  188. 

INCAPACITY 

to  contract,  renders  a  contract  fraudulent,  143, 144, 145, 146,  147. 

INCUMBRANCES.     See  Notice. 

vendor  must  disclose,  if  not  apparent  on  the  deeds,  103. 

notice  of,  to  purchaser,  before  conveyance,  binds,  318,  319,  320. 

right  of  purchaser  to  pay  off,  after  conveyance,  out  of  unpaid 

purchase  moneys,  320. 
legal  estate,  when  a  protection  against,  313,  320. 
concealment  of,  by  third  party,  130,  131. 
priority  as  between  equitable,  141,  142,  322,  323,  324. 

INFANT, 

general  incapacity  of,  to  contract,  147. 
bound  by  fraudulent  representations,  147,  148,  382. 
incumbrancer,  fraudulent  concealment  by,  relieved  agiiinst,  147, 
148,  382. 

INFLUENCE, 

undue,  transaction  set  aside  on  ground  of,  183,  185,  193,  194. 

INJUNCTION, 

remedy  by,  in  cases  of  fraud,  355,  356. 

INQUIRY, 

purchaser  fraudulently  abstaining  from,  case  of,  237. 

purchaser  negligently  abstaining  from,  fixed  with  notice,  237,  238, 

239. 
mere  suspicion  not  enough  to  put  a  man  upon,  238,  254. 

INSANITY.     See  Lunatic. 

INSOLVENCY, 

concealment  by  purchaser  of  his,  108. 
when  assignee  in,  may  purchase,  160,  161. 
representation  of  solvency,  108. 


INDEX.  481 

INSOLVENCY— con^mMecZ. 

vendor's  knowledge  of  his,  108. 
mutual  mistake  as  to  solvency,  109, 
after  committing  an  act  of,  109. 

mSPECTION 

of  property  by  purchaser,  its  effect  on  misdescription,  75,  76,  77, 

78,  95. 

INSURANCE.     See  Policies  of  Insurance. 

INTENTION, 

false  representation  as  to,  not  a  ground  fur  relief,  88,  89. 
evidence  of,  admissible  when   there   has   been  a  mistake  in   the 

expression  of  an  agreement,  414,  416,  418. 
of  author  of  power,  no  relief,  so  as  to  defeat,  443. 
of  testator,  when  evidence  admissible  to  explain,  451,  452. 

INTEREST, 

of  vendor  in  property,  purchaser  must  disclose  facts  increasing, 
98. 

in  property,  conveying  party  mistaking,  has  no  remedy,  432, 
433. 

on  moneys  advanced,  allowed  on  setting  aside  a  transaction,  344. 

on  improvements,  allowed  to  purchaser  on  setting  aside  a  trans- 
action, 351. 

in  respect  of  costs,  charges  and  expenses,  allowed  to  complaining 
party  on  setting  aside  a  transaction,  351, 

INTOXICATION 

of  party  to  contract,  its  effect,  147. 


JOINT  CONTRACTS, 

when  held  in  equity  joint  and  several,  425,  420,  427. 

JUDGMENTS, 

fraud  in,  43,  44,  292,  293,  294,  352. 
how  relieved  against,  353. 
reorjstered,  are  notice  only  if  search  be  made,  206. 
purchasers  when  bound  by  notice  of  unregistered,  26G. 
mistalxc  in,  446. 


482  IKDEX. 

JURISDICTION, 

of  equity  over  fraud,  uoL  excluded  by  existence  of  remedy  at 
law,  45,  46. 


LACHES.     See  Delat. 

LATENT, 

defects,  what  are,  101,  103. 

must  be  disclosed  by  vendor,  101,  103. 
ambiguity  in  agreement,  435. 
parol  evidence  admissible  to  explain,  435. 

LAW, 

remedies  at,  in  cases  of  fraud,  325,  326,  327,  328,  329,  330,  331. 

jurisdiction  of  equity  over  fraud  not  excluded  by  existence  of 
remedy  at  law,  45,  46. 

LEASE, 

notice  of,  whether  notice  of  all  its  contents,  242,  243,  244. 
covenants  in,  need  not  be  mentioned  on  sale  of,  243. 
there  must,  however,  be  no  misrepresentation,  243,  244. 
misdescription  respecting,  when  fatal,  62,  63,  64, 
purchaser  of,  has  what  notice  of  lessee's  title,  250. 

LEASEHOLD, 

described  as  freehold,  variance  is  material,  62,  63,  362. 

LEAVE  AND  LICENSE, 

rule  at  law  as  to,  133,  134,  135. 

as  distinguished    from  equitable  doctrine  of  acquiescence, 
133,  134,  135. 

LEGACIES, 

fraud  in  the  prevention  of,  273,  274,  275,  354. 

revocation  of,  under  mistake,  3S3,  384. 

false  reason  given  for,  when  avoiding,  354,  355,  450,  451. 

LEGAL  ESTATE, 

how  far  a  protection  to  purchaser,  312,  313,  314,  315,  318,  319, 
320. 

not  a  protection  where  a  purchaser  has  omitted  to  inquire  for  the 

title  deeds,  251. 
being  outstanding,  notice  of,  is  notice  of  the  trusts  on  whicli  it  is 

held,  248. 


INDEX.  483 

LEGISLATURE, 

fraud  upon  the,  295,  296. 

LESSEE, 

has  constructive  notice  of  lessor's  title,  249. 

LESSOR, 

notice  of  tenancy  not  notice  of  title  of,  247. 

lessee  or  purchaser  from  lessee  has  notice  of  title  of,  249. 

LICENSE 

to  exercise  a  right  over  the  land  of  another  may  be  counter- 
manded at  law  by  the  owner  of  the  soil,  135. 

not  so  in  equity,  if  there  has  been  acquiescence  or  encouragement 
to  spend  moneys,  133,  134,  135. 

LIEN, 

notice  of  possession  of  deeds  is  notice  of,  251. 
vendor's  tenancy,  when  not  notice  of,  247. 

LIMITATIONS,  STATUTE  OF, 

equity  acts  upon  analogy  of,  and  follows  as  to  legal  demands, 

304. 
eflfect  of,  upon  equitable  demands  and  in  cases  of  equitable  titles, 

304. 
delay  for  less  than  time  allowed  by,  may  bar  right  to  relief  in, 

equity,  304,  306. 
not  a  bar  in  cases  of  fraud,  51,  303. 

LUNATIC, 

how  far  incompetent  to  contract,  143,  144, 145,  146. 
committee  of,  may  not  purchase  lunatic's  estate,  161. 

M 

MARITAL  RIGHTS, 

of  husband,  fraud  upon  the,  217,  218,  219,  220. 

settlement  or  conveyance  of  property  during  treaty  of  marriage 

without  notice  to  the  intended  husband,  217,  218,  219. 
acquiescence  by  husband  in,  220. 

MARRIAGE.     See  Settlement. 

a  sufficient  consideration  for  a  settlement,  200,  201,  232. 
setttlement  before,  may  be  fraudulent  and  void,  200,  201. 

whether  valid  in  favor  of  colliitcrals,  232,  233. 
is  not  a  part  perfurmance  of  parol  agreement,  137. 


484  INDEX. 

MARRIAGE— continued. 

fraud  in  withholding  consent  to,  223. 
mistake  in  settlement  of,  424,  425. 

MARRIAGE  ARTICLES, 
fraud  upon,  215,  216,  217. 

MARRIAGE  BROKAGE  BONDS,  220,  221,  222. 
incapable  of  confirmation,  221. 

MARRIED  WOMAN, 

how  far  incapable  to  sell  or  buy,  148,  149. 
acting  fraudulently  is  bound,  149. 

MARRY, 

bound  to,  223. 

MEDICAL  MAN, 

as  to  purchases  by,  and  gifts  to,  from  patient,  193. 

MISAPPREHENSION, 

agreement  entered  into  under,  when  not  enforced^  411. 

MISDESCRIPTION.     See  Misrepresentation. 
condition  respecting,  82,  364. 

destroys  effect  of  what  would  otherwise  be  notice,  79,  80,  255. 
■what  so  material  as  to  avoid  a  contract,  62,  03,  64,  65. 
specific  performance  decreed  notwithstanding,  where  compensa- 
tion  can  be  made,  361,  362. 

MISREPRESENTATION.     See  Concealment. 
what  constitutes,  53,  54,  91,  92. 
must  be  of  something  material,  73. 
must  be  relied  on,  73,  75,  76,  77,  78,  79. 
must  be  a  proximate  cause  of  a  transaction,  74. 
must  be  in  respect  of  a  fact,  82,  83,  84,  85,  86. 
allegation  of,  may  be  met  by  proof  of  knowledge,  78,  79. 
need  not  be  in  express  terms,  90,  91,  92. 
may  be  by  acts  or  artifices  to  mislead,  92,  98,  99,  102. 
must  be  made  with  the  intent  to  deceive,  92,  93. 
must  be  attended  with  damage,  93. 
as  to  mere  matter  of  opinion,  82,  83,  84,  85,  86. 
as  to  value,  84,  85,  87,  364. 
as  distinguished  from  mere  exaggeration,  86. 
as  to  matter  of  opinion  made  by  purchaser  to  vendor,  87. 
as  to  cost,  (SiC,  of  property,  88. 


INDEX.  4S5 

MISREPRESENTATION— con  ^i/iwed:. 
as  to  intention,  88,  89. 
as  to  matter  of  law,  90,  400. 
made  innocently  or  by  mistake,  57,  68. 
not  in  general  a  ground  for  an  action  at  law,  325. 
in  what  cases  it  vitiates  a  contract,  57-65. 
in  what  cases  it  does  not  vitiate  a  contract,  59,  60. 
by  party  who  ought  to  know  the  truth,  57,  69. 
if  made  by  party  who  was  not  under  a  duty  to  know  the  truth, 

must  be  disclosed  by  him,  as  soon  as  he  discovers  the  truth, 

67,  68. 
destroys  effect  of  what  would  otherwise  be  notice,  79,  80,  193, 

255. 
caveat  emptor  does  not  apply  when  there  is  a  positive,  82. 
in  prospectuses  of  companies,  110,  116,  117,  118. 
by  agents,  binding  on  principal,  111,  112, 113, 114,  115,  116,  117. 
by  infant  binds  him  in  equity,  147. 
extent  of  application  in  equity  of  doctrine  of  law  as  to,  126, 

127,  135. 
negligence  may  be  tantamount  to,  137. 
action  at  law  for  damages  lies  for,  53,  325,  326,  340. 
not  so,  however,  if  made  innocently,  325. 

and  in  the  absence  of  a  duty  to  know  the  truth,  69 
rescission  of  contract  at  law  on  the  ground  of,   325,  326,  327, 

328,  329,  330. 
rescission  of  contract  or  conveyance  in  equity  on  the  ground  of, 

333,  334,  335,  340. 

unless  compensation  can  be  made,  339,  340. 
DO  i-escission  of  contract  either  at  law  or  in  equity  if  party  who 

made  the,  is  a  stranger  to  the  contract,  331,  340,  341. 
as  a  ground  of  defense  to  a  bill  for  specific  performance,  357, 

358,  359,  361,  364,  365. 
ipef'-fic  performance   notwithstanding,  if  compensation    can  be 

made,  361,  362,  363. 
-osts  in  cases  of,  390,  391,  392, 393. 

MISTAKE, 

what  is,  396. 

in  matter  of  law,  396,  397, 398,  399, 400, 401. 

when  a  ground  of  relief  in  equity,  398,  399,  400,  401. 

payment  of  moneys  under,  401,  402,  403. 


480  INDEX. 

MISTAKE — continued. 

not  a  ground  for  setting  aside  a  compromise,  403,  404. 
selection  of  wrong  instrument,  397. 
decision  subsequently  overruled,  397. 
misconstruction  of  statute,  397. 
of  attorney,  397. 
when  relief  granted,  399. 
misconstruction  of  instrument,  400. 
ignorance  of  right,  400. 
in  matter  of  fact,  405,  406. 

of  law  and   of  fact,  opinion    of  Savigny  as  to  distinction  be- 
tween, 405,  406. 
as  distinguished  from  fraud,  406,  407. 
as  distinguished  from  negligence,  407,  408. 
principles  on  which  relief  is  granted  against,  408,  436,  437, 
must  be  material,  408. 

may  be  of  one  party  not  known  to  the  other,  400,  409,  410. 
specific    performance    not  enforced  against  party  acting  under, 

410,  411,  412. 
of  one  party  known  to  the  other,  400,  412,  413,  414. 
caused  by  misrepresentation,  57,  90,  413,  414. 
not  caused  by  misrepresentation,  414,  415. 
consisting  in  expression  of  agreement,  414. 
in  some  matter  inducing  the  aga-eement,  414,  415. 
common  to  both  parties  to  agreement,  416. 
in  expression  of  agreement,  416. 

no  specific  performance,  except  on  terms,  417. 
rectification  of,  418,  419,  420,  421,  422,  423,  424, 

425, 426,  427. 
cases  in  which  there  can  be  no  rectification  of,  357, 
428,  429. 
in  matters  inducing  the  agreement,  429, 430, 431. 

in  what  cases  not  a  ground  of  relief,  431,  432,  433. 
as  to  matters  to  which  the  agreement  is  to  be  applied,  434, 
435. 
in  marriage  settlem'Mit,  where  the  final  instrument  and  prelim- 
inary contract  differ,  424,  425. 
of  fact,  recovery  of  moneys  paid  under,  415. 

in  compromises  and  family  arrangements,  433,  434, 
parol  evidence  admissible  to  prove,  412,  416,  417,  418,  423,  435. 


INDEX.  487 

MISTAKE— continued. 

terms  imposed  on  setting  aside  a  transaction  on  the  ground  of, 
436,  437,  438. 

when  money  is  spent  on  another's  estate  through  mistake  of  title, 
127. 

election  under,  453. 

in  the  execution  of  powers,  when  aided  in  equity,  438,  439,  440, 
441,442,443,444. 

when  parties  have  omitted  acts  necessary  to  the  validity  of  instru- 
ments, 445,  446. 

when  an  instrument  is  drawn  untechnically,  447. 

in  judgments,  446. 

cancellation  of  deed  by,  276. 

in  awards,  447,  448. 

in  wills,  when  rectified,  448,  449,  450,  451. 

when  parol  evidence  admissible  to  explain,  451,  452. 

in  legacies,  449,  450. 

revocation  of  legacies  under,  453. 

condition  imposed  by  will  under,  453. 

when  a  fiUse  reason  is  given  for  a  legacy,  450,  451. 

effect  of,  in  costs,  454,  455,  456. 

MONEYS, 

bill  to  recover,  obtained  by  fraud,  46,  368. 

paid  under  mistake  of  fact  when  recoverable,  415. 

of  law  whether  recoverable,  401,  402,  403. 
arising  from  illegal  contract,  assertion  of  title  to,  379. 

"MORE  OR  LESS," 

quantity  of  land  stated  to  be,  65,  66,  67,  363. 

MORTGAGEE, 

puisne,  may  buy  the  mortgaged  property  from  a  prior,  under 

his  power  of  sale,  162. 
may  buy  from  mortgagor,  162. 
legal,  not  inquiring  for  or  giving  up  the  title  deeds,  how  aflected 

in  equity,  140,  141. 
equitable,  not  inquiring  for  or  giving  up  the  title  deeds,  how 

aflected  in  equity,  142. 

MORTMAIN  LAWS, 

fraud  upon  the,  279,  280. 


488  INDEX. 

N 
NEGLIGENCE, 

may  be  tantamount  to  misrepresentation,  137. 
principle  of  law  as  to,  137,  138, 

application  of,  as  between  two  innocent  parties  who  have 

been  defrauded  by  a  third,  138,  139. 
application  of,  as  between  owner  of  legal  estate  and  a  party 

having  an  equitable  claim,  140,  141,  142. 
application  of,  as  between  parties  having  mere  equitable 

interests  in  real  estate,  141. 
in  what  cases  does  not  apply,  141. 
distinction  between  gross  and  mere,  140,  141,  239,  240. 

as  understood  in  the  Roman  law,  140  n. 
as  distinguished  from  mere  want  of  caution,  239,  240. 
gross,  treated  as  notice,  240. 

omission  by  incumbrancer  to  give  notice  of  claim  is,  in  case  of 
personal  estate,  142. 

secus  in  case  of  equitable  interests  in  real  estate,  142. 
omission  to  inquire  for  title  deeds  is  gross,  141,  251. 
not  getting  or  giving  up  title  deeds,  when  gross,  141,  251. 

NOTICE.     See  Constructive  Notice. 
doctrine  of,  234,  235. 

founded  on  fraud,  233,  234. 
actual,  235. 
constructive,  236. 

gross  negligence  may  be  treated  as,  239,  240. 
mere  want  of  caution  not  tantamount  to,  239. 
that  property  is  incumbered,  &c.,  is  notice  of  incumbrances,  &c., 

239,  241. 
of  deed  is  notice  of  contents  241,  242. 
of  lease  is  notice  of  covenants,  242,  243,  244. 
that  a  man  is  in  possession  of  land  is  notice  of  all  equities  therein, 

244,  245,  248. 
of  tenancy  is  notice  of  equities  of  tenant,  245,  246,  247. 
of  past  tenancy  not  notice  of  equities  of  tenant,  247. 
of  tenancy  not  notice  of  lessor's  title,  247. 
person  held  to  have,  of  facts  which  he  ought  to  have  known,  248, 

249,  250,  251. 
that  title  deeds  are  in  possession  of  another  is  notice  of  his  cla'm, 

234,  251. 


INDEX.  489 

NOTICE — continued. 

possession  of  deeds  by  solicitor  of  vendor  is  not,  of  interest  of 

solicitor  therein,  250,  251. 
witness  to  deed  not  bound  by,  of  contents  of  deed,  252. 
party  specially  referred  to  another  for  information  fixed  with,  252, 
mere  statement  that  information  may  be  had  at  a  particular 

place  not,  252. 
that  property  is  charged  is  notice  as  to  the  nature  of  the  charge, 

253,  254. 
doctrine  as  to,  does  not  extend  to  instruments  or  circumstances 

which  may  only  by  possibility  affect  property,  254. 
may  be  excluded  by  positive  representation,  79,  80,  247,  255, 

256,  257. 
misrepresentation  may  avoid  effect  of  what  would  be,  79,  80, 255, 

256,  257,  258. 
registration  of  assurance  is  not,  unless  search  be  made,  263,  264, 

205. 
registration  with,  of  unregistered  assurance,  265. 
of  unregistered  judgment,  266. 
record  of  deed  is,  264. 

not  required  to  be  recorded  is  not,  264. 
deficient  in  statutory  requirement,  264. 
only  to  those  claiming  under  grantor,  264. 
when  left  with  clerk,  264. 
incorrect  index,  264. 
in  wrong  name,  264. 

variance  between  copy  and  original,  265. 
renewals,  265. 
judgment  not,  unless  search  be  made,  266. 
purchaser  with,  judgments  do  not  affect,  266. 
immaterial  as  between  judgment  creditors,  266. 
to  solicitor  or  agent  is  notice  to  client  or  principal,  258,  259,  260. 
notwithstanding  that  solicitor  be  committing  a  fraud  upon 
client,  261. 
to  partner  is  notice  to  other  partners,  262. 
to  director  of  company  not  notice  to  company,  262. 
to  shareholder  of  company  not  notice  to  company,  262. 
to  proper  officer  of  company  notice  to  company,  262. 
shareholder  of  company  not  necessarily  fixed  with,  of  contents  of 

memorandum  of  association  of  company,  261,  262. 
doctrine  of,  applies  although  no  solicitor  be  employed,  237. 


490  INDEX. 

i^OTlC^—Co7itinued. 

gives  priority  as  between  equitable  incumbrancers  in  personal 

estate,  142. 
does  not  give  priority  as  between  equitable  interests  in  land,  142, 

321,  322. 
purchaser  for  value  without,  having  legal  estate,  protected  in 

equity,  312,  313,  316. 
purchaser  for  value  with,  from  purchaser  without,  protected,  315, 

316. 
purchaser  having,  cannot  defeat  it  by  getting  in  the  legal  estate, 

316. 
of  another  having  better  right  to  call  for  legal  estate  is  notice  of 

all  equities,  315. 
purchaser  with  notice  of  facts  which  ought  to  have  put  him  on 

enquiry  cannot  claim  as  a  purchaser  without,  316,  317. 
before  payment  of  purchase  money,  though  it  be  secured,  and 

conveyance  executed,  is  sufficient,  318,  319,  320. 
before  conveyance,  but  after  payment  of  purchase  moneys,  320. 
purchasers  under  a  decree  aifected  with,  317,  318. 
purchase  for  value  without,  available  against  a  legal  title,  320, 

321. 
purchase  for  value  without,  no  defense  as  between  persons  claim- 
ing mere  equities,  321,  322. 
injunction  notwithstanding  defense  of  purchase  for  value  without," 

321. 
defense  of  purchase  for  value  without,  cannot  be  admitted,  unless 

it  is  pleaded,  369. 
purchase  for  value  with,  not  bound  by  a  voluntary  settlemet.t, 

227,  228,  229. 
matters  of  which  purchaser  has,  vendor  need  not  state,  101. 


o 

OCCUPATION, 

notice  of,  notice  of  equities  of  occupier,  244,  245,  248. 

aliter  as  respects  a  past  occupation,  247. 
rent  debited  in  account  to  a  purchaser  on  rescinding  purchase  of 

real  estate,  345. 
not  equivalent  to  recording,  245. 
merely  an  inference,  245. 
under  recorded  deed,  246. 


INDEX.  491 


OCCUPATION—  Continued. 

terminated  before  purchase,  246. 

joint,  246. 

by  mortgagor  after  foreclosure,  246. 

notice  to  creditors,  246. 

by  tenant,  24G. 

cestui  que  trust,  246. 

of  intruder,  246, 

must  be  possessio  pedis,  248. 

must  put  party  on  inquiry,  248. , 

without  claiming  title,  248. 

OFFER 

for  purchase  by  third  person,  false  assertion  of,  by  vendor,  85. 

OFFICE  BROKAGE  BONDS,  222. 
OMISSION 

of  parcels  from  conveyance,  purchaser  relieved,  418. 

OPINION 

puffing  statements  amounting  to  mere  expression  of,  allowable, 

82,  83,  84,  85. 

P 

PARENT  AND  CHILD, 

rule  of  equity  as  to  dealings  between,  179,  180,  181,  182. 

PAROL  EVIDENCE.     See  Evidence. 

admissible  to  prove  fraud  in  a  deed,  389. 

not  in  general  admissible  to  vary  a  wi-itten  agreement,  416,  418. 
admissible  to  prove  an  engagement  or  a  representation  amount- 
ing to  an  engagement,  356. 

PART, 

unspecified,  of  estate,  notice  of  charge  as  affecting,  242. 

PARTICEPS  CRIMINIS, 

cann.jt  in  general  have  relief,  373,  374,  375,  376,  377. 

may  in  particular  cases  have  relief,  377,  378,  379,  388. 

PARTIES 

who  may  sue  for  relief  on  tlie  ground  of  fraud,  371,  372,  373. 
defendants  to  a  suit  for  relief  on  the  ground  of  fraud,  379,  380, 

381,  382. 
third  parties,  who  have  abet'.cd  a  fraud,  may  be  made,  380,  381, 

382. 


492  IlsDEX. 

PARTNERS, 

stand  to  each  other,  in  respect  of  dealings  between  them,  in  a 
fiduciary  relation,  182. 

PARTNERSHIP, 

firm,  how  far  bound  by  fraud  or  misrepresentation  of  a  partner, 

114,382. 
terms  of  rescission  of,  for  fraud,  351. 

PART-PERFORMANCE, 

doctrine  of^  founded  on  fraud,  135,  136. 

what  acts  of,  are  or  are  not  sufficient  in  equity,  136,  137. 

PATENT, 

defects,  vendor  need  not  point  out,  101. 
ambiguity,  evidence  not  admissible  to  explain,  435. 

PAYMENT, 

of  moneys,  under  mistake  of  fact,  relievable,  415. 

of  law,  whether  or  not  relievable,  401, 
402,  403. 
injunction  to  restrain  the,  355. 

PLACE  BROKAGE  BONDS,  222. 

PLEADING, 

fraud,  365,  366,  367,  368,  369. 

evidence  not  admissible  to  prove  fraud,  unless  fraud  be  alleged 

in  the,  365. 
purchase  for  value,  without  notice,  369,  370,  371 . 
notice,  367. 

POLICIES  OF  ASSURANCE, 

affirmation  in,  when  warranties,  72. 
concealment  in,  118,  119,  120,  121. 

POST-NUPTIAL  SETTLEMENT, 

when  valid  or  not,  as  against  creditors,  200,  201,  202,  203,  232, 
233. 

POVERTY, 

of  vendor,  when  a  ground  for  setting  aside  a  contract,  189,  190. 
not  an  excuse  for  laches,  311. 

POWER, 

fraud  upon  a,  relieved  against,  267,  272. 

where  appointment  is  made  for  benefit  of  appointer,  267, 208. 


INDEX.  493 

P  0  W  E  R — con  tinned. 

or  for  benefit  of  party,  not  an  object  of  the  jjowar,  269, 

270. 
or  for  a  purpose  foreign  to  the  purpose  of  the  power, 
271,  272. 
where  necessary  consent  to  it  has  been  obtained  by  misre- 
presentation, 272. 
when  vitiating  an  appointment  in  toto,  and  when  in  part 
only,  272,  273. 
defective  execution  of  a,  when  aided,  438,  439,  440. 
in  favor  of  whom,  440,  441. 
as  against  whom,  444. 
as  against  whom,  not  aided,  444. 
only  in  cases  when  an  intention  to  execute  clearly  appears, 

441,  442. 
not  aided,  if  executed  by  deed,  instead  of  by  will,  443. 

or  if  intention  of  author  of  power  would  be  defeated, 
443. 
of  statutory  powers  not  aided,  444,  445. 
aided  in  favor  of  a  volunteer,  if  there  be  fraud,  445. 
by  will,  when  aided,  442,  443. 

not  aided,  if  the  defect  be  in  the  substance  of  the  power,  440. 
non-execution  of,  as  distinguished  from  defective  execution  of,  not 

aided,  unless  there  be  fraud,  440,  445. 
fraud  in  preventing  the  execution  of,  relieved  against,  274,  445. 

PREFERENCE, 

to  creditors,  assignments  giving,  valid  at  law,  210,  211  212. 
secret,  when  void  in  cases  of  assignment,  214,  215. 
fraudulent,  under  the  Bankrupt  Laws,  284, 285,  286. 

PREVENTION  OF  ACTS, 

for  benefit  of  third  parties,  fraud  in,  relieved  against,  273  274 
275. 

PRINCIPAL  AND  AGENT.     See  Agent. 

rule  of  equity  as  to  dealings  between,  172,  173,  174, 
rule  of  equity  as  to  dealings  between,  is  not  limited  to  cases 
where  the  relation  actually  exists  at  the  time,  175,  176. 
after  termination  of  relation  of,  parties  may  deal,  175,  176. 
gifts  between,  176,  177. 

principal  putting  forth  representations  made  to  him  by  his  agent, 
as  his  own,  bound  in  equity,  68. 


494  INDEX. 

PRINCIPAL  AND  AGENT— coniinued. 

not  liable  however  in  action  for  deceit,  69,  326. 
form  of  decree,  when  agent  has  secretly  bouglit  from  or  sold  to 
principal,  349,  350. 

PRIORITIES, 

as  between  innocent  parties,  defrauded  by  a  third,  139,  140, 141, 

142. 
as  between  equitable  incumbrancers  of  personal  estate,  142. 
as  between  equitable  incumbrancers  of  real  estate,  142. 
as  between  parties  having  mere  equities,  322,  323,  324. 
as  between  voluntary  grantees,  198,  230. 

PRISON, 

contract  entered  into  with  party  in,  valid,  185. 

PROBATE, 

obtained  by  fraud,  relief  against,  354. 

PROFIT, 

trustee,  agent,  &c.,  purchasing  and  making,  must  account,  156, 
172,  349,  350. 

PROOF, 

of  fraud,  must  be  clear  and  conclusive,  383. 
what  is  sufficient,  385. 
rests  in  general  on  party  alleging  fraud,  383. 

burthen  of,  that  transaction  is  free  from  fraud,  rests  on  defend- 
ant in  what  cases,  151,  157,  164, 165,  172,  386,  387. 

burthen  of,  where  deeds  have  been  cancelled,  276, 

what  is,  of  fairness  of  transaction,  387,  388. 

PUBLIC  COMPANIES.     See  Companies. 

PUFFING, 

statements  by  vendor,  their  effect,  83,  84,  87. 
on  sales  by  auction,  225,  226,  227. 

PURCHASE  MONEYS, 

notice  of  adverse  right  before  payment  of,  sufficient,  318,  319, 

320. 
payment  of,  not  part  performance,  137. 

procured  by  fraud,  relieved  against,  326. 
purchaser  allowed  to  follow,  351. 


INDEX.  495 

PURCHASER  FOR  VALUE  WITHOUT  NOTICE.    See  Notice. 
having  legal  estate,  protected  in  equity,  312,  313. 
may  get  in  outstanding  legal  estate,  313,  314. 

even  when  his  equitable  title  depends  on  a  forged  instru- 
ment, 314,  315. 

unless  from  a  trustee,  313,  314, 
protected  where  he  has  the  best  right  to  call  for  the  legal  estate, 

320. 
of  a  mere  equity,  not  entitled  to  priority,  321,  322. 
may  defend  himself  by  plea,  369. 

by  answer,  370,  371. 

by  demurrer  370,  371. 

Q 

QUALIFYING  EXPRESSIONS, 

in  statement  of  quantity,  65,  Q>Q,  67,  363. 

QUANTITY, 

deficiency  in,  compensated,  67,  363. 
misdescription  in,  not  capable  of  compensation,  63. 

K 

RACK-RENT, 

misdescribed  as  ground  rent,  63. 

RECEIVER, 

may  not  purchase  for  his  own  benefit,  162. 

RECITAL, 

of  instrument  amounts  to  notice,  241. 
ambiguous,  not  notice,  254. 

RE-CONVEYANCE, 

of  real  estate,  decreed  in  cases  of  fraud  and  mistake,  344,  437. 
not  decreed,  if  transaction  is  not  voidable  but  void,  345. 
on  what  terms  decreed,  345,  340,  347. 

against  trustee,  agent,  die,  who  has  purchased  or  sold  im- 
properly, 349,  350. 
no,  in  general,  until  account  be  taken,  350,  351. 
costs  of,  &c.,  allowed  to  plaintiff,  350. 

RECORD, 

fraud  in,  provable  by  parol  evidence,  389. 


49G  INDEX. 

EECTIFICATION, 

of  mistake  in  written  instruments,  418,  419,  420,  421,  422,  423, 

424,  425,  426,  427. 
cases  in  which  there  cannot  be,  424,  427,  428,  429. 
not  given,  unless  mistake  be  clearly  proved,  421. 
parol  evidence  of  mistake  admissible  on  application  for,  423. 
in  particular  cases  decreed,  though  mistake  is  only  implied,  425, 

420. 
of  voluntary  deed  not  ordered,  unless  by  consent  of  parties,  429. 
ordered  only  upon  bill,  not  upon  motion  or  petition,  429. 
if  there  be  fraud,  there  can  be  no,  352. 

REGISTER, 

is  notice  only  if  searched,  266. 

removal  of  name  of  party  induced  to  take  shares  in  a  company 

by  fraud  from  the,  351. 
removal  of  name  inserted  by  misrepresentation  on,  of  a  company, 

351,  352. 

REGISTRATION, 

with  notice  of  unregistered  assurance,  265. 

not  notice  unless  search  be  made,  263,  266. 

of  assurance  in  Ireland  binds  the  title,  263. 

of  judgments,  266. 

in  county  register,  265,  266. 

is  constructive,  264. 

not  required  to  be  recorded,  264. 

defective,  264. 

left  with  clerk,  264. 

incorrect  index,  264. 

variance  between  record  and  original,  265. 

renewals,  265. 

REGISTRY  ACTS, 

fraud  upon  the,  relieved  against,  288. 

RELEASE, 

when  binding  in  equity,  297. 

REMEDIES, 

for  fraud,  at  law,  325,  326,  328,  329,  330,  331. 
in  equity,  333. 

rescission,  343,  353. 
for  fraud,  in  equity  declaring  a  party  trustee,  353,  354. 


INDEX.  497 


REMEDIES— co«/i/iJ<ec/. 

for  fraud,  in  equity,  injunction,  355,  356. 

specific  performance,  how  affected  by  fraud,  357, 
358. 

RENEWAL, 

of  lease  by  trustee  enures  for  benefit  of  cestui  que  trust,  154  n. 

RENTS  AND  PROFITS, 

party  in  possession  must  account  for,   on  a  purchase  being  set 

aside,  345,  346,  347,  348. 
trustee,  &c.,  purchasing  must  account  for,  350. 

REPAIRS.     See  Improvements. 

REPETITION, 

in  civil  law  of  money  paid  under  mistake  of  law,  403. 

REPRESENTATION.     See  Misrepresentation. 

made  recklessly,  is  fraud  at  law,  if  it  be  untrue,  54. 
honestly  believed  to  be  true,  is  not  a  fraud,  although  it  be  un- 
true, 57,  325. 

unless  there  be  a  duty  to  know  the  truth,  57,  69. 
what  are  reasonable  grounds   for   believing  in  the  tiuth  of  a, 

68,  69. 
duty  of  party  who  has  innocently  made  a  false,  to  disclose  the 

truth,  on  discovering  the  falsehood,  66,  67. 
as  distinguished  from  a  warranty,  70,  71. 
doctrine  of  notice  does  not  apply,  if  there  be  a  distinct,  79,  80, 

255,  256. 
party  entitled  to  rely  on  a  distinct,  79,  80,  255. 
as  to  matter  of  opinion,  82,  83. 
as  to  value,  not  to  be  relied  on,  84,  85. 
vague,  goes  for  nothing,  83,  84,  85,  86,  87,  88. 
amounting  to  engagements,  90,  274,  275. 
as  to  intention,  88. 

as  distinguished  from  representation,  amounting  to  engage- 
ment, 90,  274,  275. 
by  parties  having  a  duty  to  perform,  111,  381. 
person  making  a  false,  if  not  a  party  to  the  transaction,  as  far  as 

possible  compelled  to  make  it  good,  333,  341,  342. 

REPRESENTATIVES, 

of  party  defrauded  may  file  a  bill  for  relief,  372. 
relief  may  be  had  against,  of  defrauding  party,  after  liis  death, 
379,  380. 


498  INDEX. 

RE-SALE, 

of  property  purchased  by  trustee,  &;c.,  349. 
ordered  on  what  terms,  349,  350. 
RESCISSION,    . 

of  deeds,  instruments,  &;c.,  for  fraud,  at  law,  326,  327,  328,  331, 
332. 

in  equity,  333  et  seq. 
principle  on  which,  is  had,  328,  333,  334,  335,  330. 
of  sale  of  goods  and  chattels  at  law  for  fraud,  32G,  327,  328, 

329,330. 
cannot  be  had,  if  there  has  been  acquiescence,  328. 

or  if  rights    of    others    have  intervened,  327,  328,    329, 

330,  334,  335. 
or  if  the  parties  cannot  be  restored  to  their  original  position, 
48,  49,  327,  328,  335,  336,  337,  338,  339. 
cannot  in  general  be  had,  unless  the  transaction  can  be  rescinded 

in  loto,  52,  336,  337,  338,  339. 
cannot  be  had,  if  the  defrauding  party  is  not  party  to  the  trans- 
action, 331,  340,  341. 
on  what  terms  decreed,  343,  344,  345,  346,  347,  348,  351. 

where  trustee,  &c.,  has  bought  or  sold  secretly,  349,  350. 
where  a  man  has  been  induced  to  take  shares  in  a  company, 

351. 
where  a  man  has  been  induced  to  enter  into  a  partnership, 
351. 
bill  for,  dismissed  without  prejudice  to  action,  352. 
of  transaction  on  the  ground  of  mistake,  409,  429,  430,  431,  436. 
principle  on  which  is  had,  436. 
terms  on  which  granted,  436,  437,  438. 

RESERVED  BIDDING,  225,  226,  227. 

RESTORATION, 

by  purchaser  of  altered  premises,  compelled,  346,  347. 

RESTRAINING  STATUTES, 
fraud  upon  the,  288. 

RES  IS, 

•  directed  in  case  of  fraud,  348. 

RETENTION 

of  deeds  by  venrlor,  its  effoct,  140,  141,  251. 

RETICENCE.     >S'e<?  Silence. 


INDEX. 


499 


EEVENUE  LAWS, 

fraud  upon  the,  288. 

REVERSION, 

purchaser  contracting  for,  must  inform  vendor  of  death  of  tenant 

for  life,  96. 
misstatement  on  sale  of,  what  not  matter  for  compensation,  65. 
inadequacy  of  consideration  in  sale  of,  not  a  ground  for  setting 

aside  sale,  187  n. 
purchaser  need  not  take,  instead  of  estate  in  possession,  363. 

REVOCATION, 

of  will  under  mistake,  453. 

of  legacy  by  mistake,  452,  453. 


s 

SALE 

by  court,  set  aside  for  fraud,  44,  232,  353. 

of  goods  and  chattels  rescinded  at  law  for  fraud,  326,  327,  328, 

329,  330,  332. 
by  auction,  fraud  in  respect  of,  224, 225,  226,  227. 
of  chattels  sold  under  a  warranty,  rescission  of,  331,  332. 

SETTLEMENT, 

notice  of,  is  notice  of  articles,  241. 

voluntary,  is  fraudulent  as  against  purchasers,  227,  228,  229, 
230,  231,  232.  -^ 

who  may  set  aside,  229,  230.       ^i|i» 
on  marriage  may  yet  be  fraudulent,  201,  202. 
to  defiaud  creditors,  196,  197,  198,  199. 
revocable  is  fraudulent,  211,  212. 
post-nuptial,  when  valid  or  not,  201,  202,  203,  232. 
ante-nuptial,  voluntary  as  to  collaterals,  203,  232. 

unless  in  special  cases,  202,  203,  204,  232,  233. 
underhand  agreement  to  defeat,  avoided  in  equity,  216. 
secret,  of  wife  in  fraud  of  marital  rights,  216,  217. 
mistake  in,  when  remedied,  424,  425. 

SHAREHOLDER.     See  Shares. 

in  a  company,  induced  by  misrepresentation  to  take  shares,  upon 

what  terms  relieved,  351. 
removal  of  name  of,  from  register,  351,  352. 


500  INDEX. 

SB.AEEHOL'DER^contmued. 

assignment  by,  of  his  shares  to  a  pauper,  whether  fraudulent  or 

not,  277,  279. 
when  creditor  of  company  may  sue  out  execution  against  a  par- 
ticular, 278. 
SHARES, 

purchaser  of,  in  a  company,  upon  misrepresentation  by  the  com- 
pany, relieved  from  the,  341,  351. 
not  relieved  from  the,  if  he  was  induced  to  take 
them  by  the  fraud  of  a  third  party,  340. 
or  of  a  shareholder,  341. 
nor  relieved  from  the,  if  he  was  induced  to  take 
them  from  a  shareholder  upon  misrepresenta- 
tions by  the  company,  341. 
issued  fraudulently,  right  of  purchaser  of,  to  prove  on  winding 
up,  279. 

SILENCE.     See  Concealment. 

mere,  not  a  fraud,  96,  100,  128. 

a  fraud,  if  there  be  a  duty  to  speak,  100,  101,  127,  128,  129, 

130,  131. 
a  fraud,  if  there  be  artifices  to  mislead,  100,  101,  131. 
where  both  parties  have  equal  opportunities,  128,  131. 
refusal  to  speak,  with  reason  given,  128. 
on  payment  of  small  sums,  131. 
under  mistake  of  law,  132. 

SOLICITOR  AND  CLIENT.     See  Costs. 

rule  of  equity  as  to  dealings  between,  163,  164,  165,  166. 
statement  of  untrue  consiJei'ation  in  a  deed  between,  fatal,  .167. 
rule  of  equity  as  to  dealings  between,  is  not  limited  to  cases 

where  solicitor  is  actually  employed  at  the  time,  1G7. 
after  termination  of  relation  of,  parties  may  deal  with  each  other, 

167,  168. 
cases  in  which  the  rule  of  equity  as  to  dealings  between,  does  not 

apply,  168,  169,  170. 
gifts  from  client  to  solicitor  invalid,  170,  171. 
what  parties  come  within  the  rule  as  to  dealings  between,  171, 

172. 
notice  to  solicitor,  notice  to  client,  258,  259,  260. 

notwithstanding  solicitor  may  be  committing  a  fraud,  261. 
fDrm  of  decree  when  solicitor  has  secretly  bought  from  client,  349. 


IlfDEX.  601 

SOLICITOR  AND  CUENT— continued. 
must  disclose  adverse  retainer,  163. 
cannot  go  over  to  adverse  party,  163. 
suits  before  magistrates,  164. 
securities,  164. 
purchaser  from  client,  167. 

two  clients,  169. 

defendant,  169. 
SPECIFIC  PERFORMANCE, 

principle  of  the  court  in  respect  of,  357,  358. 
misrepresentation  a  bar  to,  358,  359. 

conduct  of  party  seeking,  must  be  fair  and  clear,  358,  364. 
misdescription  a  bar  to,  359,  360,  362,  363. 

unless  compensation  can  be  made,  361,  362. 
false  representation  as  to  value  a  ground  for  refusing,  364. 
inadequacy  of  consideration  not  a  ground  for  refusing,  364. 
of  lease  not  enforced,  containing  usual  covenants,  which  defend- 
ant had  no  reasonable  grounds  of  knowing,  244,  360,  361. 
mistake  of  defendant  a  bar  to,  410,  411,  412,  417. 
parol  evidence  of  misrepresentation  or  mistake  admissible  as  an 

answer  to  a  bill  for,  364,  412,  417,  418. 
with  parol  variation  introduced  by  the  defendant,  364,  417. 
parol  variation  on  part  of  plaintiff  not  admissible  in  suit  for,  417, 

418. 
by  purchaser  against  vendor,  who  has  innocently  made  a  mistake 

in  description,  not  enforced  except  on  terms,  364. 
costs  in  suits  for,  390,  392,  455,  456. 

SPOLIATION  OF  DEEDS, 

fraud  by,  275,  276. 
STATUTES, 

fraud  upon,  relieved  against,  288. 

of  Mortmain,  fraud  upon,  279. 

of  Limitations,  304. 

13th  Elizabeth,  as  to  creditors,  196. 

27th  Elizabeth,  as  to  purchasers,  226. 
STATUTORY  POWERS, 

no  relief  against  defective  execution  of,  442,  443,  444. 
STRANGER, 

agreement  brought  about  by,  with  a  fraudulent  object,  yet  valid 
between  parties,  52,  53,  340,  341. 


502  INDEX. 

STRANGER— con  tinued. 

liable  for  misrepresentation,  53,  54,  340,  341. 
SUB-LESSEE, 

has  notice  of  title  of  immediate  and  original  lessor,  249. 

cannot  rely  on  representations  of  his  lessor,  also  a  sub-lessee  as 
to  covenants  in  lease,  257. 
SUPPRESSION  OF  DEEDS, 

fraud  by,  275,  276. 
SURETYSHIP, 

what  concealment  vitiates  contract  of,  122,  123. 
SURRENDER, 

of  copyhold  supplied  in  equity,  438,  446,  447. 
SUSPICION, 

mere,  of  fraud,  is  not  notice,  239,  254. 

circumstances  of,  do  not  warrant  conclusion  of  fraud,  384, 


T 

TACKING, 

foundation  of  doctrine  of,  324,  325. 
confined  to  honafide  purchaser,  324. 
what  is,  324. 

TENANCY, 

notice  of,  is  notice  of  tenant's  interests,  245,  246,  247. 

but  not  of  lessor's  title,  246,  247. 
past,  notice  of,  not  notice  of  tenant's  interests,  247,  248. 
of  vendor,  notice  of,  is  no  notice  of  lien,  when,  246,  247. 

TENANT, 

what  acts  by,  are  part  performance,  136. 
TENANT  EOR  LIFE, 

may  purchase  from  trustees  of  settlement,  162,  163. 

with  power  to  sell  or  lease,  may  sell  or  lease  to  himself,  163. 

concealment  of  death  or  dangerous  illness  of,  by  purchaser  of 

reversion,  98. 
death  of,  unknown  to  both  parties  at  time  of  contract,  contract 
vitiated  by,  430. 
TENANT  IN  TAIL, 

induced  by  fraud  to  bar  the  entail,  remedy  of  remainderman, 
372. 


IIJDEX.  503 

TERM  OF  YEARS, 

instead  of  fee,  purchaser  need  not  accept,  62,  63,  362. 

TERMS, 

on  which  a  transaction   is    rescinded  for  fraud,  343,  344,  345, 

346,  347,  348. 
of  rescission  of  partnership  transactions  for  fraud,  351. 
of  rescission  of  contract  for  purchase  of  shares,  351. 
on  setting  aside  a  transaction  for  mistake,  437,  438. 

TIME.     See  Delay. 

lapse  of,  a  bar  to  relief,  303,  304,  305. 

begins,  in  cases  of  fraud  and  mistake,  to  run  from  the  discovery, 

309,310,  311,436. 
does  not  run  where  there  is  undue  influence,  310,  311. 
lapse  of,  as  affecting  remainderman,  312. 
lapse  of,  effect  of,  as  between  trustee  and  cestui  que  trust,  308, 

309. 
what  lapse  of,  sufficient  to  bar  relief  in  equity,  305,  306. 

TRICK.     See  Cheat. 
TRUSTEE, 

and  cestui  que  trust,  rule  of  equity  as  to  dealings  between,  153, 
154,  155,  156,  157,  158. 
concealment  in  dealings  between,  157,  158. 
what  parties  within  the  rule,  161,  162, 
what  parties  not  within  the  rule,  160,  162, 

163. 
dealings  between  after  termination  of  rela- 
tion, 159. 
may  not  derive  any  profit  in  the  execution  of  his   trust,  156, 

349,  350. 
selling  property  of  his  own  secretly  to  the  cestui  que  trust,  349. 
buying  property  secretly  from  cestui  que  trust,  349,  350. 
acquiescence  by  cestui  que  trust  in  dealings  with,  when  bindino-, 

303. 
legal  estate  got  in  from,  when  available,  313,  314. 
transactions  relating  to  trust  estate,  154. 
valid  as  to  third  parties,  154. 
binding  on,  155. 
when  I'omedy  at  law,  155. 
cannot  purchase  from  himself,  157. 
entitled  to  compensation,  156. 


504  nn)EX. 


U 

UNDER-LEASE.     See  Sub-Lessee. 

instead  of  lease,  purchaser  need  not  accept,  363. 

UNDUE  INFLUENCE, 

rule  of  equity  as  to,  143,  150,  183,  184. 
what  is,  184,  185,  186. 

in  what  cases  relief  has  been  given  against,  193,  194,  195. 
bonds  given  as  a  reward  for,  to  be  exercised  over  testators,  222. 
in  the  promotion  of  marriage,  bonds  given  for,  220,  221,  222. 
in  preventing  an  act  for  the  benefit  of  third  parties  being  done, 
273,  274. 

V 
VALUE. 

representation  as  to,  not  to  be  relied  on,  83,  84,  85,  86. 

false  representations  as  to,  may  however  amount  to  a  fraud,  84, 

87,  88. 
vendor  may  put  upon  purchaser  the  responsibility  of  telling  him 

the,  87,  88. 

VOLUNTARY  CONVEYANCE.     See  Fraudulent  Conveyance. 
of  real  estate,  void  as  against  subsequent  purchaser,  227,  228, 

229,  230,  231,  232. 
contract  to  sell  with  notice  of,  enforced  by  purchaser,  229. 
maker  of,  may  defeat  it  by  a  sale,  229. 

heir  or  devisee  of  settler  of,  may  not  defeat  it  by  a  sale,  229. 
of  chattels  not  defeasible  by  a  sale,  233. 
void  as  against  creditors,  200,  201,  202,  203. 
as  distinguished  from  settlement  for  value,  200,  201,  202,  203, 

232,  233. 

w 

WARD.     See  Guardian  and  Ward. 

WARRANTY, 

what  is  a,  70,  71,  72. 

as  distinguished  from  representation,  70,  71. 

does  not  cover  patent  defects,  101. 

of  title  on  sale  of  goods,  104,  105. 

rescission  of  sale  of  chattels  sold  under  a,  331. 


INDEX.  505 

WILL, 

fraud  in  obtaining,  not  cognizable  in  equity,  44,  354. 
what  is  undue  influence  in  obtaining,  184,  185. 
revocation  of,  by  mistake,  452,  453. 
mistake  in,  when  porrected  in  equity,  448,  449,  450. 

parol  evidence  admissible  to  explain,  462. 
execution  of  power  by,  instead  of  by  deed,  443. 

by  deed,  instead  of  by,  443. 
WITNESS.     See  Attesting  Witness. 

testimony  of  one,  will  not  prevail  against  a  denial  by  answer, 
399. 


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